. . 

TIFE~~ATTORNEYGENERAL 

OF TEXAS 

Aun-rnu. TRXAS 78711 

April 9, 1974 

The Honorable Charles R. Barden, P. E. 

Executive Director 

Texas Air Control Board 

8250 Shoal Creek Blvd. 

Austin, Texas 78758 

Opinion No. H- 276 

Re: Confidentiality of complaints 

of emissions received by Air 

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 manufacture or production which is identified as confidential 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 Inspection ‘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 theboard 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 statements 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 

David M. Kendall. Chairman 

Opinion Committee 

9.