              THEA'I[TORNEYGENERAI.
                        OF TEXAS
                    AUSTIN.      78711      ‘,?SXAS




                                     June 26,         1975



The Honorable     Charles R. Barden,              P. E.
Executive   Director
Texas Air Control Board                                      Opinion No.   H- 635
8520 Shoal Creek Boulevard
Austin,   Texas 78758                                        Re:   Right of investigators
                                                                   of the Texas Air Control
                                                                   Board to photograph
Dear Mr.      Barden:                                              equipment.

     You have requested our opinion concerning whether the Texas Air
Control Board has authority to photograph specific pieces of equipment
used in a production or air contaminant abatement process.       You also
ask whether such photographs would be considered     confidential under
section 1.07 of article 4477-5,  V. T. C.S., the Texas Clean Air Act.

    Section    3.04   of article   4477-5      provides:

        The board shall conduct, or have conducted,       any
        research  and investigations  it considers   advisable
        and necessary  for the discharge   of its duties under
        this Act.

     The use of photographic      equipment is a common method of performing
an investigation.      In the area of air pollution control we believe the use of
photographs to be a particularly        useful means of documenting evidence
gathered in a research        or investigatory   operation.    In our opinion the
Legislature    intended to authorize the Air Control Board to utilize any reason-
able means of conducting investigations.          Accordingly,    the Texas Air Control
Board may take photographs         of specific equipment as an incident of an investi-
gation which the Board reasonably         considers   necessary    and advisable for
the discharge     of its duties.
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    The Honorable          Charles   R.   Barden.   page 2




          Section   1.07    of the Clean Air    Act provides:

              Information   submitted to the board relating to secret
              processes   or methods of manufacture    or production
              which is identified as confidential when submitted
              shall not be disclosed  by any member,    employee,    or
              agent of the board.

         While these photographs may be excepted from disclosure              under the
    Gpen Records Act, V. T. C. S., art. 6252-17a,           in our view, section 1.07
    is of little application to these photographs       for in our understanding     they
    are not “submitted to the board, ” within the meaning of that section.
    However,      if such photographs    are so submitted and otherwise are within
    the protection of section 1.07, they will be confidential unless they relate
    to emission      data.   Attorney General Opinion H-539 (1975).        In that opinion
    we held that neither section,‘.l. 07 nor the Gpen Records Act excepted
    emissions      data from disclosure     .  This ruling was based on the policy
    provisions     of both acts; the Legislature’s    contemplation    of federal funding,
    article 4477-5,       section 2.10; the emission inventory provisians       of article
    4477-5,     section 3.03,    and the public information    section of that act.
    V. T. C. S., art. 4477-5,       sec. 2.13.

        If the photographs are taken by an employee or agent of the board
    they will be confidential only insofar as they are excepted from disclosure
    under the Open Records Act.      V. T. C. S., art. 6252-17a. Section 3(a)(lO) of
    that act excepts trade secrets from disclosure,     Open Records Decision No. 89
    (1975), which exception is quite similar to section 1.07 of article 4477-5.      The
    photographs   taken by an employee or agent of the board are therefore     confi-
    dential if they are trade secrets and do not relate to emissions    data. Attorney
    General Opinion H-539 (1975).      -

                                          SUMMARY

                  The Texas Air Control Board may take photographs
              of equipment as an incident of research  or investigatory
              operation which it reasonably   deems advisable and neces-
              sary for the discharge  of its duties.
.   .




    The Honorable   Charles   R.   Barden,    page 3




                 Unless these photographs    relate to emissions   data,
            they would be confidential if they are within the pro-
            tection of section 1.07 of article 4477-5   or constitute
            trade secrets.

                                                     Very   truly yours,




                                                      OHN L. HILL
                                                     Attorney General      of Texas

    APPROVED:




    DAVID   M.   KENDALL,     First   Assistant




    Opinion Committee




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