      . .




                                         The Attorney          General of Texas
                                                          December 31, 1982
MARK WHITE
Attorney General


                                        Mr. Steve Haley                          Opinion No. w-575
Supreme      Court Building
                                        General Counsel
P. 0. BOX 12546
Austin.    TX. 76711. 2548
                                        Texas Department of Agriculture          Re: Whether pesticide com-
5121475-2501                            P. 0. Box 12847                          plaint investigation files
Telex    910/674-1367                   Austin, Texas   78711                    held by the Department of
Telecopier      512/475-0266                                                     Agriculture   are   public
                                                                                 information under the Open
1607 Main St.. Suite 1400
                                                                                 Records Act
Dallas.   TX. 75201-4709
2141742.6944                            Dear Mr. Haley:

                                             You have requested our opinion as to whether pesticide complaint
4624 Alberta       Ave., Suite    160
El Paso. TX.       799052793
                                        investigatory files held by the Texas Department of Agriculture are
9151533.3464                            available to the public.

                                             The Department of Agriculture has broad regulatory responsibility
1220 0alk.s    Ave., Suite       202
                                        for the state's pesticide programs. See, e.g.. Tex. Agriculture Code
Houston,    TX. 77002.6966
7131650-0666
                                        9875.003 (department may determine whether chapter 75 applies to a
                                        substance); 75.018 (department may promulgate rules under chapter 75);
                                        76.047 (department may deny or cancel use of a regulated pesticide);
606 Broadway.        Suite 312          76.075 (department may require a licensed pesticide dealer to submit
Lubbock,     TX.    79401.3479
                                        records); 76.116 (department may suspend, modify or revoke any
6061747.5238
                                        provision in the license of a certified applicator); 76.153
                                        (department may issue a stop-sale order regarding use of a pesticide);
4309 N. Tenth. Suite 6                  76.154 (department may sue to enjoin violation of any provision of
McAllen, TX. 76501-1665                 chapter 76); 76.155 (department may request a prosecuting attorney to
5121662.4547
                                        prosecute a violation of any provision of chapter 76).

200 Main Plaza, Suite 400                    The Department of Agriculture is not a law enforcement agency,
San Antonio,  TX. 76205.2797            since its "function is essentially regulatory in nature," even though
5121225-4191                            it is charged with the duty of enforcing its own statutes. open
                                        Records Decision No. 199 (1978). Thus, the usual standards under
An Equal       Opportunity/             section 3(a)(8) applicable to a law enforcement agency in determining
Affirmative      Action     Employer    public access to closed or open files, see Open Records Decision Nos.
                                        127 (1976) and 252 (1980), do not applyxthe   department.

                                             When an investigatory file is open, however, and there exists a
                                        reasonable probability of criminal prosecution, even a non-law
                                        enforcement agency may be able to claim the sect+   3(a)(8) exception
                                        as to that file.      Open Records Decision No. 297, 286 (1981).
                                        Likewise, as to files which have been closed, whether by prosecution
                                        or by administrative determination, the department is entitled to
                                        claim an exception under section 3(a)(8) as to any portion of such



                                                                   p. 2125
                                                                         . .   .



Mr. Steve Haley - Page 2   (MN-575)




files which a law enforcement agency has determined that release
"would unduly interfere with law enforcement and crime prevention."
Open Records Decision Nos. 313 (1982); 297 (1981). See Ex parte
Pruitt. 551 S.W.Zd 706 (Tex. 1977). The law enforcementagency must
demonstrate how and why release of the information would unduly
interfere with law enforcement, unless the information on its face
reveals this. Open Records Decision No. 313 (1982).

     As to open investigatory files which relate to civil, rather than
criminal, matters, the Department of Agriculture may withhold all
information relevant to the particular file so long as the attorney
for the department determines that it should be withheld from public
inspection in accordance with section 3(a)(3) of the Open Records Act.
The attorney must find that litigation is reasonably likely to result
and that the particular information to be withheld is relevant to that
litigation. See Open Records Decision Nos. 311 (1982); 289 (1981);
139 (1976). Since section 3(a)(3) is applicable only to pending or
potential litigation, however, the exception may not be invoked after
a file has been closed, whether by prosecution or otherwise. If a
dispute arises about the application of 3(a)(3) to a particular file,
the matter should be referred to this office. V.T.C.S. art. 6252-17a,
57.

     The informant's privilege under section 3(a)(l) is applicable not
only to law enforcement agencies, but also to "administrative
officials having a duty of inspection or law enforcement within their
particular spheres." Open Records Decision Nos. 285 (1981); 279
(1981).   As we have previously observed, "unless [informant]
confidentiality is maintained, voluntary citizen cooperation with law
enforcement investigations might be compromised."        Open Records
Decision No. 285 (1981). Thus, even as to a closed civil file, the
Department of Agriculture may withhold the names of informants where
it deems such action necessary to promote future citizen cooperation.
Whether the privilege may also be extended to the contents of a
statement made by an informant depends upon the circumstances of each
particular statement and accordingly, must be determined on a
case-by-case basis. -See Open Records Decision No. 285 (1981).

                            SUMMARY

            Pending pesticide complaint investigatory files
         held by the Texas Department of Agriculture may
         generally be withheld from public disclosure under
         section 3(a)(3) of the Open Records Act.




                                      -MARK      WHITE
                                       Attorney General of Texas



                                   p. 2126
Mr. Steve Haley - Page 3      (Mw-575)




JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger




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