. . 

The Attorney General of Texas 

December 31, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin. TX. 76711. 2548 

5121475-2501 

Telex 910/674-1367 

Telecopier 512/475-0266 

1607 Main St.. Suite 1400 

Dallas. TX. 75201-4709 

2141742.6944 

4624 Alberta Ave., Suite 160 

El Paso. TX. 799052793 

9151533.3464 

1220 0alk.s Ave., Suite 202 

Houston, TX. 77002.6966 

7131650-0666 

606 Broadway. Suite 312 

Lubbock, TX. 79401.3479 

6061747.5238 

4309 N. Tenth. Suite 6 

McAllen, TX. 76501-1665 

5121662.4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 76205.2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Mr. Steve Haley 

General Counsel 

Texas Department of Agriculture 

P. 0. Box 12847 

Austin, Texas 78711 

Opinion No. w-575 

Re: Whether pesticide complaint investigation files 

held by the Department of 

Agriculture are public 

information under the Open 

Records Act 

Dear Mr. Haley: 

You have requested our opinion as to whether pesticide complaint 

investigatory files held by the Texas Department of Agriculture are 

available to the public. 

The Department of Agriculture has broad regulatory responsibility 

for the state's pesticide programs. See, e.g.. Tex. Agriculture Code 

9875.003 (department may determine whether chapter 75 applies to a 

substance); 75.018 (department may promulgate rules under chapter 75); 

76.047 (department may deny or cancel use of a regulated pesticide); 

76.075 (department may require a licensed pesticide dealer to submit 

records); 76.116 (department may suspend, modify or revoke any 

provision in the license of a certified applicator); 76.153 

(department may issue a stop-sale order regarding use of a pesticide); 

76.154 (department may sue to enjoin violation of any provision of 

chapter 76); 76.155 (department may request a prosecuting attorney to 

prosecute a violation of any provision of chapter 76). 

The Department of Agriculture is not a law enforcement agency, 

since its "function is essentially regulatory in nature," even though 

it is charged with the duty of enforcing its own statutes. open 

Records Decision No. 199 (1978). Thus, the usual standards under 

section 3(a)(8) applicable to a law enforcement agency in determining 

public access to closed or open files, see Open Records Decision Nos. 

127 (1976) and 252 (1980), do not applyxthe department. 

When an investigatory file is open, however, and there exists a 

reasonable probability of criminal prosecution, even a non-law 

enforcement agency may be able to claim the sect+ 3(a)(8) exception 

as to that file. Open Records Decision No. 297, 286 (1981). 

Likewise, as to files which have been closed, whether by prosecution 

or by administrative determination, the department is entitled to 

claim an exception under section 3(a)(8) as to any portion of such 

p. 2125 
Mr. Steve Haley - Page 2 (MN-575) 

files which a law enforcement agency has determined that release 

"would unduly interfere with law enforcement and crime prevention." 

Open Records Decision Nos. 313 (1982); 297 (1981). See Ex parte 

Pruitt. 551 S.W.Zd 706 (Tex. 1977). The law enforcementagency must 

demonstrate how and why release of the information would unduly 

interfere with law enforcement, unless the information on its face 

reveals this. Open Records Decision No. 313 (1982). 

As to open investigatory files which relate to civil, rather than 

criminal, matters, the Department of Agriculture may withhold all 

information relevant to the particular file so long as the attorney 

for the department determines that it should be withheld from public 

inspection in accordance with section 3(a)(3) of the Open Records Act. 

The attorney must find that litigation is reasonably likely to result 

and that the particular information to be withheld is relevant to that 

litigation. See Open Records Decision Nos. 311 (1982); 289 (1981); 

139 (1976). Since section 3(a)(3) is applicable only to pending or 

potential litigation, however, the exception may not be invoked after 

a file has been closed, whether by prosecution or otherwise. If a 

dispute arises about the application of 3(a)(3) to a particular file, 

the matter should be referred to this office. V.T.C.S. art. 6252-17a, 

57. 

The informant's privilege under section 3(a)(l) is applicable not 

only to law enforcement agencies, but also to "administrative 

officials having a duty of inspection or law enforcement within their 

particular spheres." Open Records Decision Nos. 285 (1981); 279 

(1981). As we have previously observed, "unless [informant] 

confidentiality is maintained, voluntary citizen cooperation with law 

enforcement investigations might be compromised." Open Records 

Decision No. 285 (1981). Thus, even as to a closed civil file, the 

Department of Agriculture may withhold the names of informants where 

it deems such action necessary to promote future citizen cooperation. 

Whether the privilege may also be extended to the contents of a 

statement made by an informant depends upon the circumstances of each 

particular statement and accordingly, must be determined on a 

case-by-case basis. - See Open Records Decision No. 285 (1981). 

SUMMARY 

Pending pesticide complaint investigatory files 

held by the Texas Department of Agriculture may 

generally be withheld from public disclosure under 

section 3(a)(3) of the Open Records Act. 

. . . 

-MARK WHITE 

Attorney General of Texas 

p. 2126 
Mr. Steve Haley - Page 3 (Mw-575) 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

p. 2127