.   .




                       TIFE~~ATTORNEYGENERAL
                                       OF     TEXAS

                                  Aun-rnu.    TRXAS        78711



                                         April   9, 1974


        The Honorable Charles R.       Barden,    P. E.       Opinion   No.   H-   276
        Executive   Director
        Texas Air Control Board                               Re: Confidentiality   of complaints
        8250 Shoal Creek Blvd.                                of emissions   received by Air
        Austin,   Texas   78758                               Control Board



        Dear   Mr.   Barden:

               You have requested our opinion as to the accessibility,under     the
        Open Records A,ct (Article 6252-17a,  V. T. C. S. ) of information  in the
        custody of the Texas Air Control Board:


               (1)      Are the names of persons complaining      of emissions
                        from a particular  source of air pollution considered
                        public information  and subject to disclosure   as such
                        by this agency7


               (2)      Are verbatim    statements   submitted by such persons
                        during the course of an investigation     considered
                        public information    subject to disclosure?


               (3)      If legal action is contemplated  by this agency
                        against such source of air pollut,ion partially
                        as a result of these complaints,   and if questions
                        1 and/or 2 are answered in the affirmative,     at
                        what point in time does this information   cease
                        being public under Sec. 3 (a)(3) of Article 6252-177


               (4)      Under Sec. 3 (a)(8),    is information    gathered by this
                        agency during enforcement       investigations    (such as
                        stack sampling or property line sampling results)
                        considered   confidential  as “matters     relating to law
                         enforcement”?.




                                                 pe 1288
     The HonorabY,e Charl.es    R,, Barden.    P. E,    page 2   (H,.276)



           Aithough ycaur letter St&es :~t 1s made under Sec. 7 (a) of the Open
     Records Act, that sect,lon deal,s with an actual, request for specific
     informat~lon and, smce we construe your request as a general one instead,
     we will trek it, as a request for an opinion under Article 4399, V, T. C. S.

            The intent of the Open Records Act was not to make anything
     confidential  that was hitherto required by other statute to be public;.
     and the correlative    intent is that it does not make public anything,
     expressly    made confidential or non-disclosable.      Section 3 (a)(l). Since
     various provIsions   of the C~dean A.ir Act desrribe   the scope of acces&ibi-.
     lity of the Texas Air Cont:rol. Boardes records<, it is necessary       to interpret
     what is and what is not availab:!e under the Texas Clean Air Act before
     evaluating the effect,    if any, of t.he Open Records Act upon the accessibility
     of such records.

            The pert.ment   portions   ,of the Texas   Clean Air Act (Article   4477-5,
     V. T. C. S. ) are:

                         “Sec. IL.07. Information   submitted to the board
                    relating to secret processes   or met.hods of manu-
                    facture or production which is identified as confiden-
                    tial when submitted shall, not. be disclosed.  .    _

                         ‘ESec. 2.13,    AI”,, inform&ion,    documents,   and data
                    roUected ‘ty the board.         . . are property of the State.
                    Su’bJect to t:he l.imitat,ions of Sec,tlc;;n 1,. 07, . ak:l
                    records uf t:he board are ptibric records open to Inspec-
                    tion ‘by any person     during regular office hours.

                        “Sec. 2, Y,4. Subject to the limltations  of .Secrlon 1: 07
                    ~ 1    the ‘board shall furnish certified or other copies
                    of any proceeding   or other official act of record-    or of
                    any map, paper, or document filed with the board,,           i . I’

           In Attorney General Opinion H-241 (1974b, dealing with your inquiry
     concerning the disclosabjlity  of recomm,endations of your investigators
,.   on permit applications,   we said:
The      Honorable         Chafles         R.     Barden,              page      3     (H-276)



                        “The      language           oft 5 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              Accordingly,,                it is our~bpinion                    that
                        the documents                described           in your        letter        are      public
                        informatian,withaut                  reference               to the Open              Records
                        Act    arid that~ the legislation                     making         them       public
                        information             is not repealed               or affected             by the Open
                        Records          Act.    ”


          Section       2.14     of A,rticle         4477-5,           V-T.     C. S. , obligates                   the Board             to
furnish      copies       of all proceedings~                and official             acts     of the Board,                  and to
furnish      copies       of any map,             paper,         or document                filed      with       the Board,
except      those      protected          by Section         1,. 07,      which        declares              that     “Information
submitted        to the Board             relating        to secret            processes.               .     . shall       not be
disclosed.       ”     The     Open       Records         Act     does        nothing~to             alter     the        confidentiality
of such      secret       processes.              Article         6252-17a,           Section          3 (a)(l).           (10).    Nor        does
it extend       confidentiality            to other         records           of the Board                  specifically           made        p;blic.


          We    are     of the opinion,              therefore,            that your          first         and     second         questions
should      be answered            that     the names            of,persons~           complaining                  of emissions~
of air     pollutants         and their         verbatim              statements,            to the         extent        that     they
appear       in the records              of the Air         Control           Board,         are      public         documents             and
copies      should      be furnished             to those         requesting            them.           To the extent                that.our
decision       conflicts        with     Attorney          General            Opinion        M-957            (1971),       that     opinion
is overruled.


          In vi~ew of our          determination                that      the Open           Records            Act       was      not intended
to restrict          the availability            of information                made      public         by other            statutes,           our
answer       to your       third      question         is that .the contemplation                            of legal        action       or its
pendancy        does      not cause         information                available        under         Sec.        2.14      to cease           to be
public.        S,ection       3 (a)(3)     of Article           6252-17c,             V. T. C. S.,             does        not apply.


          Similarly,           even      should       we consider              the Board             to be a law              enforcement
agency,        the    exception          by Sec.       3 (a) (8)         of Article           62,52-17~.            of certain        records
of such      agencies          from      the Open        Records              Act,     does - not            have       the effect             of




                                                                ,p.     1290
.




    The     Honorable        Charles       R.   Barden         page     4      (H,-276)



    amending        Sets.       2. i3 and 2.14       of Article       4477-5        so as to make             unavail,able
    records        made     pub?ic      and avai:lable     by them.


                                                     SUMMARY
                                                     -

                                 The    names      of persons         complaining          of emissions
                          from     a particular        source      and their         verbatim            state-
                          ments        submitted     to the Texas           Air     Control       Board       are
                          declared        “public”     under      Article      4477-5,        V. T. C. S.


                                                                                  Very    truly     yours,




                                                                       u          Attorney        GeneraI         of Texas




                                                                                                    9.


    David     M.     Kendall.        Chairman
    Opinion        Committee
