              TWEATTORNEY                    GENERAX~
                             OF   TEXAS




                              February 26, 1974


The Honorable Charles R. Barden,    P. E.         Opinion No. H-   241
Executive Secretary
Texas Air Control Board                           Re: Application of Article
820 East 53rd Street                              6252-17a, House Bill 6, 63rd
Austin, Texas 78751                               Leg., to files of the Texas
                                                  Air Control Board

Dear Mr.   Barden:

       Your opinion request concerns the applicability of Article  6252-17a.
V. T. C. S. , the Open Records Act of 1973. to “a written recommendation,
made following an investigation, from a Regional Supervisor of the Texas.
Air Control Board to a permit engineer regarding whether a particular
construction permit. . . should be issued. . . . ‘I

       You ask (1) whether 8 $ 3(11) and/or 3(3) of the Open Records Act apply
to such documents so as to except them from public inspection under the Act,
and (2) whether th&act that no decision has been reached on whether to grant
or deny a permit would make any difference as to the applicability of either.
section to these documents.

      Before considering the applicability of the Open Records Act to the
records described in your letter , we must first consider whether such
records are made public by other legislation, for we do not believe that the
Open Records Act of 1973 operates to repeal or nullify other legislation
making information public.

       The activities of your board are controlled by the Texas Clean Air Act,
Article 4477-5, V. T. C. S. Sections 1.07 and 2.13 of that Act provide:
                                                                   *.
                  Section 1.07
                   “Information submitted to the board relating to
                   secret processes or methods of manufacture or




                                   p. 1118
The Honorable Charles R. Bardcn.     page 2 (H-241)




                production which is identified as confidential
                when submitted shall not be disclosed by any
                member, employee, or agent of the board. ”

                Section 2.13
                “All information documents and d&t&collected
                by the board in the performance of its duties are
                the property of the state. Subject to the limitation
                of Section 1. 07 of this Act, all records of the
                board are public records open to inspection by any
                person during regular office hours. I’

       The language of 8 2.13 above, that “all records of the board are public
records”, is very broad and we believe it clearly applies to the documents
described in your opinion request regardless of whether a decision has’been
reached on whether to grant or deny the permit.     Accordin#y,   it is our opinion
that the documents described in your letter are public information without refer-
ence to the Open Records Act ani that the legislation making them public infor-
mation is not repealed or effected by the Open Records Act.

       You also requested that we review Opinion No. M-957 (1971) which addressed
itself to the question: “Doer the Texar Air Control Board or the Executive Sec-
retary have discretion over which items and matters are to be deemed ‘confidential
information’ and ‘public records’ as those terms areused in Sections 1.07 and
2.13 of the Texas Clean Air Act? I’. That opinion contained an analysis of various
types of “records” and concluded that “files on matters under investigation for
violation dthe Texas Clean Air Act” are “evidence or potential evidence for an
enforcement action pursuant to Section 4. 02 of the Act” and are “not open to inspec-
tion by the public. ” The recommendationa described in your present opinion
request do not appear to be in this category and, accordingly, Opinion No. M-957
is not pertinent to your inquiry and we are not called upon to overrule or affirm
it. You have asked whether the distinctions made in the analysis in Opinion M-957
are still valid and our answer’tm that we are not in a position to hypothetically
discuss distinctions without reference to particular documents.




                                   p. 1119
The Honorable Chailes   R. Barden.   page 3   (H-241)




                                SUMMARY

               A written recommendation by a regional supervisor
         of the Texas Air Control Board to a permit engineer regarding
         whether a particular construction permit should be issued is
         a public record.

                                                  Yours very truly,




                                                  Attorney General of Texas




DAVID M. KENDALL,       Chairman
Opinion Committee




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