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# 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 byAir 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 inthe custody ofthe Texas Air Control Board: (1) Are the names ofpersons complaining of emissions

from aparticular source ofair pollution considered public information and subject to disclosure as such by this agency7 (2) Are verbatim statements submitted by such persons

during the course ofan investigation considered public information subject to disclosure? (3) Iflegal action is contemplated by this agency

against such source ofair pollut,ion partially as a result ofthese complaints, and ifquestions 1and/or 2are answered inthe affirmative, at what point intime does this information cease being public under Sec. 3(a)(3) ofArticle 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 1288The HonorabY,e Charl.es R,, Barden. P. E, page 2 (H,.276) Aithough ycaurletter St&es :~t1smade under Sec. 7(a) of the Open Records Act, that sect,lon deal,s with anactual, request for specific informat~lon and, smce we construe your request as ageneral one instead, we will trek it,as a request for anopinion under Article 4399, V, T. C.S. The intent ofthe Open Records Act was not to make anything confidential that was hitherto required by other statute tobe 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 ofthe C~deanA.ir Act desrribe the scope ofacces&ibi-. lity ofthe Texas Air Cont:rol. Boardes records<, it is necessary to interpret what is andwhat is not availab:!e under the Texas Clean Air Act before evaluating the effect, ifany, oft.heOpen Records Act upon the accessibility of such records. The pert.ment portions ,ofthe 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 ofmanufacture or production which is identified as confidential when submitted shall, not.be disclosed.
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‘ESec. 2.13, AI”,,inform&ion, documents, and data roUected ‘ty the board.
. . are property ofthe State. Su’bJectto t:hel.imitat,ions of Sec,tlc;;n1,.07,
. ak:l records uft:heboard 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’ InAttorney General Opinion H-241 (1974b, dealing with your inquiry concerning the disclosabjlity of recomm,endations ofyour investigators

,. onpermit applications, we said:The Honorable Chafles R. Barden, page 3 (H-276)
“The language oft52.13 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 inyour 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.