JIM MATTOX 

Attorney General 

Supreme Court Building 

P 0. BOX 12548 

Austin. TX. 76711- 2548 

51214752501 

T&x 9101874-1367 

Telecopcer 5121475-0266 

1607 Main SI., suite 1400 

Dallas. TX, 75201-4709 

2141742-8944 

4824 .4lberta Ave.. Suite 160 

El Paso. TX. 799052793 

915,533.3484 

r‘ 

LO Dallas Ave.. Sue? 202 

Houston. TX. 77002-6986 

7131650.0666 

806 l3roadway. Suite 312 

Lubbock. TX. 79401.3479 

806,747.5238 

4309 N. Tenth. Suite B 

McAllen. TX. 76501.1665 

5121662-4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 78205.2797 

5121225-4191 

I--- 

The Attorney General of Texas 

July 25, 1983 

Robert Bernstein, M.D., F.A.C.P. 

Commissio”er 

Texas Department of Health 

1100 West 49th Strert 

Austin, Texas 70756 

Dear Dr. Bernstein: 

Opiiiop No. JM-48 

R&: Availability under the 

Open Records Act of licenses 

issued by Department of Health 

relating, to storage, incineratjon, processing or disposal 

of radioactive wastes 

Ybu have requested our opinion as to the availability under the 

Open Records Act, article 6252-17a, V.T.C.S., of certain license 

applications submitted to the Texas Department of Health. You explain 

that the department has received a request “fqr copies of any new 

license or amendments to existing licenses ‘which relate to the 

storage, incineration, processing, or’ disposal~of radioactive wastes.” 

You state that, excepts’ for balance sheets, you have made such 

information available to requesters in the past. You first ask 

whether only the balance sheets may be withheld under sections 3(a)(4) 

nor. 3(a)(lO) of the Open Records Act. Those provisions except from 

disclosure: 

(4) information which, if released, would give 

advantage to competitors or bidders; 

(10) trade secrets and commercial or financial 

information obtained from a person and privileged 

or confidential by statute or judicial decision. 

Section 3(a)(4) has been construed by this office on numerous 

occasions to apply only to bidding situations prior to the award of a 

contract. See Open Records Decision Nos. 

201~ (1978) - 

319, 302 (1982); 255 (1980); 

Section 3(a)(lO) excepts information jf disclosure is 

likely either “(1) to impair the government’s ability to obtain 

necessary information in the future; or (2) to cause substantial harm 

to the competitive position of the person from whom the information 

was obtained.” Open Records Decision Nos. 309 (1982); 292 (1981); 256 

(1980). Release of a company’s balance sheet will not impair the 

department’s ability to obtain the information in the future, since 

article 44.30(b) of the Texas Regulatjons for Control of Radiation, 

promulgated under the authority of artic1.e 4590f, V.T.C.S., requires 

an applicant for a radioactive waste license to submit to the 

p. 207 
Dr. Robert Bernstein - Page 2 (~~-48) 

department information regarding its fjnancial capability, including 

capitalization, revenues, value of assets, Andy extent of liabilities. 

Whether the second prong of the test is satisfied will depend upon the 

facts of each case. 

You also ask whether you must treat a request for information as 

a continuing request. This office has said that the Open Records Act 

applies only to information in existence, and does not require a 

governmental body to prepare new information. Open Records Decision 

No. 342 (1982). Since the act requires a governmental body to furnish 

only information which is Sn existence at the time a request is made, 

we believe it follows that such request cannot be deemed a proper 

request for relevant information which nay become available in the 

future. In our opinion, the act does not require a governmental body 

to treat a request for information as a contjnuing one. 

SUMMARY 

The Open Records Act does not require a 

governmental body to treat a request for 

inforn~ation as a continuing one. Whether balance 

sheets are excepted from disclosure depends upon 

the particular facts involved: they "111~ be 

excepted from disclosure only if release would 

cause substantial harm to the competitive position 

of the person from whom the information was 

obtained. 

1/, ~f~yj&& 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN' 

First Assistant Attorney General 

DAVID R. RICAARDS 

Executive Assistant Attorney General 

Prepared by Rick Gilpin 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Acting Chairman 

Jon Bible 

Colin Carl 

Jim Moellinger 

-, 

p. 208