,
                THE      ATTORNEY     GENERAJ~
                            OF TJcl!Lis
                          AUSITN.    -             78711




                                 February 26, 1975

    The Honorable Charles R. Barden, P. E.            Opinion No. H-   539
    Executive Director
    Texas Air Control Board                           Re: Confidentiality of emis-
    8520 Shoal Creek Blvd.                            sions data supplied to the
    Austin. Texas 78758                               Texas Air Control Board.

    Dear Mr.   Barden:

            You have requested our opinion as to whether emissions data
    supplied to the Texas Air Control Board should be treated as confidential
    under any provision of the Texas Clean Air Act, article 4477-5, V. T. C. S.,
    or the Open Records Act, article 6252-17a, V. T. C. S.

             Section 1.07 of the Clean Air Act prohibits the disclosure by the
    Air Control Board of “(i]nformation submitted to the board relating to
    secret processes or methods of manufacture or production which is
    identified as confidential when submitted. . . . ” In Attorney General
    Opinion M-957 (1971), this office not only upheld the Board’s right to
    withhold disclosure of such “confidential information, ” but ruled that the
    Act required confidentiality whenever “interested parties” objected to
    the release of such information.    The opinion declared “confidential
    information” as used in section 1.07 to be similar to a “trade secret. ”
    Trade secrets were likewise exempted from disclosure by the Open          -’
    Records Act, article 6252-17a, section 3(a)(lO). Other portions of M-957,
    which could be construed as permitting certain emissions data to be held
    confidentially by the Board, were overruled in Attorney General Opinion
    H-276 (1974).

            We believe it is clear, however, that neither statute should be
    interpreted as embracing emiseionr     data within the ambit of nondisclosable
    information.   Section 2.13 of the Clean Air Act provides thdt “[a]11 informa-
    tion, documents and data” which are not excludable under section 1.07 are
    open to public inspection.   Section 1 of the Open Records Act declares the




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    The Honorable Charles R. Barden       page 2   (H-539)




    public policy of that Act to be that “all persons are, unless otherwise
    expressly provided by law, at all times entitled to full and complete
    information regarding the affairs of government and the official acts
    of those who represent them as public officials and employees, ” and
    that “to [this] end, the provisions of this Act shall be liberally cons-
    trued. . . .‘I In section 14, it is required that the statute “be liberally
    construed in favor of the granting of any request for information. ‘I

            On two previous occasions, we have ruled that the Open Records
    Act requires public access to particular information in the custody of
    the Texas Air Control Board.    In Attorney General Opinion H-241 (1974).
    a written recommendation by a regional supervisor of the Air Control
    Board to a permit engineer regarding whether a particular construction
    permit should be issued was deemed pubkinformation.       In Attorney
    General Opinion H-276 (1974), the names of persons complaining of emissions
    from a particular source,  as well as their verbatim statements submitted
    to the Board, were held disclosable.

            Although we believe that, on the basis of these prior opinions,
    emissions data is clearly public information, we are also guided by a recent
    decision of the United States Court of Appeals for the Fifth Circuit.   In
    Natural Resources Defense Council, Inc. V. Environmental Protection
    Agency,    489 F. 2d 390 (5th Cir. 1974), cert. granted, 95 S. Ct. 39
    (hereinafter referred to as         , the Court considered a challenge to
    the Envir.onmental Protection Agency’s approval of Georgia’s “implementa-
    tion plan” under the federal Clean Air Act, 42 U.S. C. $1857, et.        A
    Georgia statute had prohibited the release of “any information” relating
    to “secret processes,    devices, or methods of manufacture or production. ”
    NRDC at 396. The Court held that this prohibition contravened the federal
    Act’s requirement that a state’s implementation plan must provide for
    “periodic reports [by polluters] on the nature and amounts of . . . emissions”
    and that such reports must be “available . . . for public inspection. ” 3 at
    397.    Tbe Court concluded that since the Georgia statute precluded the
    availability of such information, $e Administrator could not lawfully approve
    this aspect of the state’s implementation plan. The Agency was consequently
     required to promulgate its own disclosure regulation to replace the inadequate
    state ruie.




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            The Honorable    Charles   R.   Barden     page    3   (H-539)




                    We therefore hold that emisrions data supplied to the Texas Air
            Control Board may not be treated as confidential under any provision of
            the Texas Clean Air Act or the Open Records Act, and that the Board is
            required to disclose such information  upon request.  To the extent that
            Attorney General Opinion M-957 (1971) conflicts with this opinion, it is
            hereby overruled.

                                              SUMMARY

                                 Emissions data supplied to the Texas Air
                             Control Board is public information under article
                             4477-5, V. T. C. S.

                                                                   Very truly yours,




                                                                   Attorney General of Texas

            APPROVED:




            DAVID   M.   KENDALL,      First Assistant




            C. ROBERT       HEATH,     Chairman
            Opinion Committee

            lg




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