JIM MATTOX AttorneyGeneral

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# TheAttorney GeneralofTexas July 25, 1983

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

”er Texas Department of Health 1100West 49th Strert Austin, Texas 70756

Dear Dr. Bernstein: Opiiiop No.JM-48 R&: Availability under the Open Records Act of licenses issued byDepartment of Health relating, to storage, incineratjon, processing or disposal of radioactive wastes

Ybuhave 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. Youexplain 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 maybewithheld 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 andcommercial or financial information obtained from aperson and privileged or confidential by statute orjudicial 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. SeeOpenRecords 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 whomthe information wasobtained.” OpenRecords 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

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department information regarding its fjnancial capability, including capitalization, revenues, value of assets, Andyextent of liabilities. Whether the second prong of the test is satisfied will depend upon the facts of each case. Youalso ask whether you must treat arequest for information as acontinuing request. This office has said that the OpenRecords Act applies only to information in existence, and does not require a governmental body to prepare newinformation. Open Records Decision No. 342 (1982). Since the act requires agovernmental body to furnish only information which is Snexistence at the time arequest 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 agovernmental body to treat arequest for information as acontjnuing one. SUMMARY The Open Records Act does not require a governmental body to treat a request for inforn~ation as acontinuing 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 harmto the competitive position of the person from whom the information was obtained.

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JIM MATTOX Attorney General of Texas TOMGREEN' First Assistant Attorney General DAVIDR. RICAARDS Executive Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General APPROVED: OPINIONCOMMITTEE Rick Gilpin, Acting Chairman Jon Bible Colin Carl JimMoellinger -,

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