                                 The Attorney               General          of Texas
                                                     January 15. 1982

MARK WHITE
Attorney General


                              Robert Bernstein,   M.D.                         Open Records Decision       No. 303
supreme
      courtSulldlnQ
                              Coolmissioner of Health
P. 0. Boa 12545
AUstkl. TX. 75n1              Texas Department of Eealth                       Re:    Whether details   o.f the
512l475.2591                  1100 West 49th Streht                            manufacture    of     medication
Telex @lw74-lS7               Austin, Texas     70756                          should be vithheld ~from dis-
TV          512l475.0255                                                       closure under the Open Records
                                                                               Act
,597 Mskl St.. suit* 1400
osnu. TX. 75201               Dear Dr. Bernstein:
2t4n42-5244
                                     You have requested   our decision under the Open Records                   Act,
     Albelts Ave., sune 150
                              article   6252-17a,  V.T.C.S..  as to whether details   regarding                  the
     sa.Tx. 79905             manufacture of a certain medication are available to the public.
     x%354
                                    Ortho-Tex   of San Antonio,      the manufacturer  of chemolase,    a
                              proteolytic    enzyme used in the treatment of lumbar disc disease,
    OaJlea Ave. suulte202
                              recently submitted an application     to the Texas Department of Health to
Howtml.Tx.  77m
71-                           manufacture, sell and distribute      chemolase in the state of Texas.    A
                              competitor has requested a copy of that portion of the application
                              which provides    the details   of the method of manufacturing chemolase.
m5 snmdwey. @Ate 312          You suggest that     this information   is excepted from disclosure   under
Lubbock. TX. 79401
                              section 3(s)(lO)    of the Open Records Act as:
5mf747a235

                                          trade    secrets   and   commercial     or   financial
uo9 N. Tenth. Suite 5                     information obtained from a person and privileged
McAlbn,Tx. 18501                          or confidential  by stetute or judicial    decision.
512a524547

                                     The section       3(e)(lO)     exception    is patterned     after     an almost
200 MM PIUS. suite 400        identical     provision    in the federal      Freedom of Informetion Act. which
San Antonio, TX. 75203        exempts “trade         secrets     and connnercial or        financial      information
5%?l22s419~                   obtained from any person and privileged               or confidential.”        5 U.S.C.
                              $552(b) (4).       When the       legislature     adopts   language      from another
 An Equel OPPWtUWl            jurisdiction,      it   is presumed to have intended it to have the same
 Atfinnatiw Action Emrdow     meaning.       State v. Weiss,         171 S.W.Zd 848. 851 (Tex.           1943).    The
                              legislative      history    of the federal       provision    makes it clear        that
                              manufacturing ,processes          were intended      to be included        within   this
                              exception.       The House Report accompanying the legislation               notes that
                              the exception:

                                          . ..uempts      such  material   if   it   would  not
                                          customarily    be made public by the person from whom
                                                                                .

Dr. Robert Bernstein    - Page 2
                                                                                .




          it ves obtained by the Government.           The l  xexption
          would     include      business      sales      statistics,
          inventories,      customsr    lists,      scientific      or
          manufacturing      processes    or    developments,       and
          negotiation   positions    or requirements in the case
          of labor-management mediations.         (Emphasis added).

House Report No. 1497. 89th Cong.. 2d Sess.        10 (1966). U.S. Code Cong.
h Adm. Naws 2148, 2427. -See Open Records          Decision Nos. 255 (1980);
107 (1975).

       Since a manufacturing process is clearly      within the meaning of
"trade    secret,"   and since    the applicant,   Ortho-Tex.   regards  the
information    es a "trade    secret,"   we are of the opinion      that the
details    of the method of manufacturing      chemolase are excepted from
disclosure    under section 3(a)(lO)   of the Open Records Act.


                                             -&-gy&g
                                             Attorney   General   of Texas

JOliR W. FAINTER, JR.
First Assistant  Attorney   General

RKRARD E. GRAT XXI
Executive Assistant Attorney       General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison,     Chairman
Walter Davis
Rick Gilpin
Jim Moellinger
