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# 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. SteveHaley General Counsel Texas Department of Agriculture P. 0. Box 12847 Austin, Texas 78711 OpinionNo.w-575
Re: Whether pesticide complaint investigation files held by the Department of Agriculture are public information under the Open RecordsAct
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 thepublic. The Department ofAgriculturehas broad regulatory responsibility for the state'spesticideprograms. See, e.g.. Tex. Agriculture Code 9875.003 (departmentmay determine whether chapter 75 applies to a substance);75.018 (departmentmay promulgate rulesunder chapter 75); 76.047 (departmentmay deny or cancel use of a regulated pesticide); 76.075 (departmentmay 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 (departmentmay issuea stop-saleorder regardinguse of a pesticide); 76.154 (departmentmay sue to enjoin violation of any provision of chapter 76); 76.155 (departmentmay request a prosecuting attorney to prosecutea 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 enforcementagency 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 enforcementagency 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

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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 RecordsDecisionNo. 313 (1982).
As to open investigatoryfileswhich 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 accordancewith section 3(a)(3) of the Open RecordsAct. The attorneymust find that litigation is reasonably likely to result and that theparticular informationto 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 exceptionmay 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, thematter shouldbe referred to this office. V.T.C.S. art. 6252-17a, 57. The informant'sprivilegeunder section 3(a)(l) is applicablenot only to law enforcement agencies, but also to "administrative officialshaving a duty of inspection or law enforcementwithin their particular spheres." Open Records Decision Nos. 285 (1981); 279 (1981). As we have previously observed, "unless [informant] confidentialityis maintained, voluntary citizen cooperationwith 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 informantswhere it deems such action necessary to promote future citizen cooperation. Whether the privilege may also be extended to the contents of a statementmade by an informantdepends upon the circumstancesof each particular statement and accordingly, must be determined on a case-by-casebasis. See Open RecordsDecisionNo. 285 (1981). - SUMMARY Pendingpesticide complaint investigatoryfiles held by the Texas Department of Agriculture may generallybe withheld frompublic disclosureunder section 3(a)(3) of the Open RecordsAct. . . .

-MARK WHITE AttorneyGeneral of Texas

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JOHNW. FAINTER,JR. FirstAssistantAttorney General
RICHARD E. GRAY III ExecutiveAssistantAttorney General Preparedby Rick Gilpin AssistantAttorney General
APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Jon Bible Rick Gilpin PatriciaHinojosa Jim Moellinger

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