. . 

September 23, 1971 

L--J 

7.L 

Hon. Charles R. Barden, P.E. Opinion No. M-957 

Executive Secretary 

‘+-Az-~~ 

Texas Air Control Board Re: Whether the Texas Air 

1100 West 49th Street Control Board or its 

Austin, Texas 78756 Executive Secretary have 

discretion to determine 

what matters are "confidential information"' 

and "public records" as 

those terms are used in 

Sections 1.07 and 2.13 

of the Texas Clean Air 

Dear Mr. Barden: Act. 

You have asked: "Does the Texas Air Control Board or 

the Executive Secretary have di.scretion over which items and 

matters are to be deemed 'confidential information' and 'public records' as those terms are used'in Sections 1.07 and 

2.13 of the Texas Clean Air Act?" We will deal first with 

"confidential information". 

The term "confidential information" is found in the 

Texas Clean Air Act, Article 4477-5, V.A.C.S., as the caption of Section 1.07. Its meaning appears clear from the 

language of the section itself: 

"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." 

Thus, "confidential information" as used in this section is only that which relates "to secret processes or 

methods of manufacture or production". This is similiar to 

a "trade secret". A "trade secret" may consist of any formula, pattern, device or compilation of information used in 

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, 

Hcum, Charles R. Barden, page 2 (M-957) 

one's business and which gives him an opportunity to obtain 

an advantage over competitors who do not know of or use it 

and aenerallv relates to the oroduction of aoods throuah it. 

Hyde-Corp. v: Huffines, 158 TAX. 566, 314 S:c.2d 763, 576, 

777 (1958). It may be a device or process which is patentable, but it need not be, and it may be a device or process 

which is clearly anticipated in the prior art or one which 

is merely a mechanical improvement that a good mechanic can 

make, and novelty and innovation are not requisite. K&G 

Tool & Service Co. v. G. & G. Fishing Tool Service, 158 Tex. 

594, 314 S.b7.2d 782, 789 (1958). 

Section 1.07 requires thatthe information~ be identified 

as confidential when submitted, but it does not indicate who 

is to classify it as such. Because the one submitting the 

information will necessarily be in the best position to know 

whether or not it is "confidential", Section 1.07 should be 

read to mean that he is the one to make the initial classification. And if classified "confidential", the information 

will be screened from public inspection under Section 2.13, 

and from public disclosure by the board. 

But the further question remains whether it can be referred to in a board order, or at a board hearing or in a 

court proceeding. Surely, the Legislature in writing Section 1.07 did not intend to prevent the Texas Air Control 

Board from using the contents of the "confidential information", where material and relevant, to form the basis of 

informed administrative decisions or action. Certainly, 

then, a board order can be based on "confidential information" in the board's file and can refer to the existence of 

such information, so long as the order does not disclose its 

substance. 

It is clear that no absolute privilege for trade secrets 

is recognized. VIII Wigmore, Evidence, page 156, Sec. 2212 

(McNaughton Revision 1961). And a statute generally declaring 

records to be confidential should be liberally construed to 

contain an implied exception for disclosure when needed in a 

judicial or quasi-judicial proceeding. Attorney General 

Opinion No. M-213 (1968). On the other hand, courts are not 

apt to require disclosure except in such cases and to such 

extent as may appear to be indispensable for the ascertainment 

of truth. VIII Prigmore, Evidence, page 157, Sec. 2212, supra. 

-4686- 

., 
Hon. Charles R. Barden, page 3 (M-957) 

In Sections 2212 and 2377 of VIII Wigmore, Evidence, supra, 

it is indicated that the general privilege for trade secrets is broader when applied to disclosure by an official 

of secrets contained in a report reauired by law to be made 

to him. 

Therefore, if it is necessary to put portions of the 

"confidential information" into evidence at a board meeting 

in order to make a complete record, the board, acting in its 

quasi-judicial capacity should follow the procedure approved 

in Crane v. Tunks, 160 Tex. 182, 328 s.w.2d 434 (1959). The 

board should submit the confidential information proposed to 

be used to the parties whom the confidential information directly concerns, in private. The affected party or parties 

could then privately make to the Air Control Board all their 

objections to the use of such evidence or to the making public of the evidence. The evidence would then be sealed and 

made a part of the record without being made public. This 

would afford the parties involved and the board the opportunity to consider the propriety of the introduction of the 

evidence, as between the needs of the board to rely on the 

evidence and the rights of the parties to have the information remain secret. The "confidential information" remains confidential, but is in this way available to a court 

in the event of an appeal of the board decision. 

In response to your question about "confidential information", you are advised that the Texas Air Control Board or 

its Executive Secretary do not have the discretion to determine what is "confidential information" as defined above. 

But they may refer to and rely upon such information as the 

basis for board orders and decisions so long as the substance 

of the information is not disclosed. The existence of this 

confidential information may be referred to at public board 

hearings, but the substance of the information can be put 

into evidence only when it is material and relevant to an 

issue at the hearing, and only by using the procedure outlined above. 

The next part of your question deals with "public recor& II. The key phrase is, "public records open to inspection by any person". Section 2.13 of the Texas Clean Air 

Act is captioned, "Documents, etc., public property",,,and 

reads: 

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Hon. Charles R. Barden, page 4 (M-957) 

"All information documents and data 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 the Act; all . 

records of the board are public records open 

to inspection by any person during regular office hours." 

The Texas Air Control Board keeps many records and com- 

'piles much data in carrying out its duties as the principal 

authority in the state on matters relating to air quality, 

criteria, standards, and emission levels for pollution con-' 

trol. Section 1.05, Article 4477-5, V.A.C.S. While most 

of these records and data are public records, and many would 

be admissible as such in a court proceeding, some of the data 

and information compiled and kept by the board is compiled 

pursuant to the board's enforcement duties and is not "open 

to inspection by any person". 

In addition to the usual administrative records, such 

as rules, regulations, standards, minutes of meetings, orders, 

and the like, which are clearly open to inspection, the Texas 

Air Control Board maintains files on 'matters under investigation for violation of the Texas Clean Air Act. This data is 

evidence or potential evidence for an enforcement action pursuant to Section 4.02 of the Act, and we hold that it is not 

open to inspection by the public. 

If evidence or potential evidence or preliminary data 

compiled and held by the board were open to inspection by 

the public, the enforcement activities of that agency would 

be subject to burdensome interference. The right of inspection of public records may not be exercised so as to unreasonably interfere with the business of government. Mac Ewan v. 

@, 226 Ore. 27, 359 P.2d 413, 85 A.L.R.2d 1086 (1961); 

Annotation 85 A.L.R.2d 1105. 

While the Texas courts have not dealt with this question 

directly, other jurisdictions have. In Mathews v. Pyle, 75 

Ariz. 76, 251 P.2d 893 (19521, the court held that documents 

gathered in an attorney general's investigation report to the 

governor of Arizona were not "public records open to inspection 

of any person". The governor had the initial right to determine what documents should be made public, but the ultimate 

-46~88- 
Hon. Charles R. Barden, page 5 

determination rested with the courts. 

N.Y.S.Zd 215 (N.Y. Sup. 19611, 

Sorley v. Listar! 218 

is the best case found~which 

clearly classifies which records are open to inspection. 

This was an action wherein certain persons whose property was 

under condemnation demanded the appraisal reports and records 

as to prices paid and to be paid for real estate. The Court 

set up three classes of records as follows: 

(1) Records which are ,public because the statutes 

specifically make them so or because the Court thinks they 

are public. These records may be inspected under reasonable 

rules and regulations set up by the custodian of the records. 

(2) Those types of records which the Court considers. 

to be public records, but which it is unwilling to open to. 

public inspection by calling them public records. Examples 

of this type of record are motor vehicle accident reports, 

reports to a state tax commission, 

certain financial statistics, 

certain healthy records, 

and court and trust fund records. In this case the right of inspection exists only if 

the person shows a private interest different from that which 

the rest of the public has. 

(3) Papers or documents which are not in any sense open 

to the public. Here the right of inspection does not exist. 

Examples of this type are police reports, confidential communications; evidence, parole board records, and certain lists 

and records not required to be kept but which are kept to facilitate administrative procedures. 

Thus, while most of the records of the Texas Air Control 

Board are public records, evidence gathered and data maintained in an investigation is not, and such is not open to 

inspection. V7hile certain types of evidence might be discoverable in a court proceeding with a proper motion under Texas 

Rules of Civil Procedure Rules 167 and 186a, this evidence 

would not be publicly "open to inspection by any person", pursuant to Section 2.13 of the Act. The Texas Air Control Board 

would be-entitled to the protections of the provisos of those 

discovery rules,~limiting the scope of discovery, just as any 

other litigant i&. Shirley v. Dalby, 384 S.W.2d 362, 368, 

369, (Tex.Civ.App. 1964 error ref. n.r.e.). 

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Hon. Charles R. Barden, page 6 (M-957) 

The Texas Air Control Board or its Executive Secretary 

are the proper ones to decide which of their records, information, documents and data they have compiled will or may be 

used in enforcement proceedings. And they are therefore in 

the best position to determine which of their records are 

"public records", and which are not. 

SUMMARY 

------- . 

"Confidential information" as used in Sections 1.07 

and 2.13 of the Texas Clean Air Act is similar to 

"trade secret" and applies only to "processes or 

methods of manufacture or production". "Public records open to inspection" as used in Section 2.13 includes most of the administrative records of the 

Texas Air Control Board, but does not include evidence, potential evidence, and preliminary data 

compiled pursuant to the board's enforcement duties. 

The board or its Executive Secretary have discretion to determine what matters are "public records 

open to inspection" and which are not, but do not 

have discretion to determine what is "confidential 

information". The board may rely upon "confidential 

information" as the basis for board orders and administrative decisions, but may not make public such 

information over the objection of the interested 

parties. 

truly yours, 

I 

Prepared by Richard W. Chote 

Assistant Attorney General 

APPROVED 

OPINION COMMITTEE: 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

-4690- 
Hon. Charles R. Barden, page 7 

Malcolm Quick 

Milton Richardson 

Malcom Smith 

Fisher Tyler 

SAM MCDANIEL 

Acting Staff Legal Assistant 

ALFREDWGKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

(M-957) 

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