The Honorable Charles Barden, P.E. Opinion No. B-836 

Executive Director 

Texas Air Control Board Re: Whether certain 

0520 Shoal Creek Boulevard information maintained 

Auetin~, Texas 78758 by the Air Control Board 

ia confidential. 

Dear Mr. Barden: 

You have requested our opinion on a number of questions 

regarding section 1.07 of the Texae Clean Air Act, article 

4477-5, V.T.C.S. Section 1.07 provides: 

Information submitted to the [Texas 

Air Control] [Bloard relating to secret 

processes or method8 of manufacture or 

production which is identified aa confidential when eubmitted shall not be 

disclosed by any member, employee, or 

agent of the [Bloard. 

You ask: 

1. Whether employees of the Texas Air 

Control Board may make public information 

which has been labeled as confidential if 

such information doee not relate to secret 

processes or methods of manufacture, and, 

if 80, what procedures, if any, the Board 

is required to follow in making the latter 

determination1 

2. how broadly the Board should interpret 

the meaning of 'relating to secret processes, 

or method8 of manufacture or proauction'; and 

3. whether confidential information may be 

forwarded to other governmental bodies. 

p. 3526 
The Honorable Charles Barden - page 2 (H-83& 

Section 1.07 establishes a two-pronged test for determining whether information submitted to the Board is disclosable to the public. In order to be deemed confidential, 

such information must: (1) relate to secret processes or 

methods of manufacture or production; and !2) be identified 

as confidential at the time of submission. Either of these 

two criteria, standing alone, is not sufficient to invoke 

the confidentiality provision of section 1.07. Thus, we. 

conclude that the Board may make public any information 

which does not relate to secret processes or methods of 

manufacture, even though that information has been labeled 

as confidential at the time of submission. 

The Act does not specify the procedures by which the 

Board is to make the determination as to whether particular 

information relates to secret processes or methods of manufacture. Such procedures must be devised by the Board, in 

accordance with section 3.01 of the Clean Air Act, which 

states, in pertinent part: 

The board shall administer the provisions 

of this Act. 

If, of course, the Board receives a request for information 

which it considers to be excepted under section 1.07, it 

should request a decision from the Attorney General pursuant 

to section 7(a) of the Open Records Act. V.T.C.S. art. 

6252-17a. We emphasize, however, that it is the Board which 

is charged with administering the provhions of the Clean 

Air Act, and it is the Board which must make the initial 

determination as to whether any requested information falls 

within the exception of section 1.07. See Attorney General 

Opinion H-90 (1973). 

You also ask us to specify how broadly the Board should 

interpret the language of section 1.07, which makes nondisclosable confidentially-labeled information "relating to 

secret processes of methods of manufacture or production." 

You state that, in some instances, to reveal the amount, 

type and rate of emissions from a particular unit might 

enable a person to determine how the process itself functions. 

In Attorney General Opinion H-539 (1975), we held that 

emissions data is clearly public information. - See Attorney 

p. 3527 
The Honorable Charles Barden - page 3 (H-831) 

General Opinion H-635 (1975). In accordance with our previous 

decisions, it remains our opinion that emissions data must 

be disclosed. In making a decision as to the disclosability 

of other confidentially-labeled information, however, the 

Board might consider the criteria which courts use in determining whether information may be classified as a "trade 

secret." 

The Texas Supreme Court in Luccous v. J.C. Kinle 

??=I 

376 S.W.2d 336, at 330 (Tex.-Suc m), 4 that 

t e generally accepted definition of a "trade secret" is 

that contained in the Restatement of Torts, section 757, 

which is stated as follows: 

b. Definition of trade secret. A 

trade secret may consist of any formula, 

pattern, device or compilation of information which is used in one's business, 

and which gives.him an opportunity to 

obtain an advantage over competitors 

who do not know or use it. It may be 

a formula for a chemical compound, a 

process of manufacturing, treating or 

preserving materials, a pattern for a 

machine or other device, or a list of 

customers . . . . A trade secret is a 

process or device for continuous use in 

the operation of the business. Generally 

it relates to the production of goods, 

as, for example, a machine or formula 

for the production of an article. 

See also K&G Oil Tool (I Service -- Co. v. G&G 

Servica, Tl? KW.‘lh781,789ex. Sup.-5 

H ffines, 314 S.W.Zd 763, 776-777 (Tex. Sup. 

&em&al Corporation v A ri-Sul Inc 

'mv. App. -- Da~a~~r~~f'~4~~w~~~;2~~~~ 

Manufacturing Corn an v. Locke' 454 S W 2d 4il; 433-r 

(Tex, Civ. App. ~n%~'l970, Ao'writ); Brown 

v. Fowler, 316 S.W.Zd 111, 114 (Tex. Civ. App. -- Ft. Worth 

TSFSB,writ ref'd n.r.e.); Boucher v. Wissman, 206 S.W.Zd 

101, 102 (Tax. Civ. App. --sT9i17,t ref'd n.r.e.1; 

Open Records Decision No. 50 (1974). 

p. 3528 
The Honorable Charles Barden - page 4 (H-830 

In accordance with the definitions and examples in these 

cases and other criteria which it may devise, the Board is 

required to make a determination of whether confidentiallylabeled information relates to secret processes or methods 

of manufacture. We emphasize that the Board must make its 

determination in any particular case on the basis of the 

particular facts relevant thereto. 

Your final question is whether information determined 

to be confidential may be disclosed to other governmental 

bodies. In our opinion, the policy of interagency 

cooperation would permit the Board to disclose such information to other state agencies. In Attorney General Opinion 

H-242 (1975), we held that information which was not accessible to the public under the Open Records Act may nevertheless "be transferred between state agencies without 

violating its confidential character," on the basis of a 

recognized need to maintain an unrestricted flow of information between state agencies. See Attorney General Opinion 

H-683 (1975); Attorney General OpTion M-713 (1970). Likewise, 

confidential information may be disclosable to county and 

municipal governments which are recognized as agencies of 

the state. Payne v. Uaa;s~. 196 S.W.26 493, 495 (Tex. Sup. 

1946); Bexar Count v, L n en, 

1920); State v 

220 S.W. 761, 763 (Tex. Sup. 

- -$&$j$~:d3;$,s;~;2d ;!$e7;3 c;:i,, Civ. App. -- 

331 S.W.2d 737 (Tex. Sup.'lm - -*' - -L 

The situation is different, however, with regard to the 

federal government. Although the statute requires the Board 

to "advise, consult and cooperate with . . . the federal 

government," section 3.19(4), we do not believe that the 

Board may thereby disclose confidential information to the 

federal government. As we stated in Attorney General Opinion 

H-242 (19741, the policy supporting interchange of information is absent when a federal agency requests information 

that is not required by law to be disclosed to it, since the 

state cannot effectively insure that the federal agency will 

maintain the confidentiality of the information. Although 

the state may permit the federal government access to 

information in the state's possession, it may not perm P= t 

access to non-disclosable information, unless some other law 

requires its disclosure. Thus, absent a federal law requiring 

p. 3529 
The Honorable Charles Barden - page 5 (H-8%) 

the Board to disclose the information, it is our opinion 

that information which is determined to be confidential may 

not be disclosea to the federal government or to any agency 

thereof. 

SUMMARY 

The Texas Air Control Board may make 

public any information which does not relate 

to secret processes or methods of manufacture 

or production, even though such information 

has been labeled as confidential when submitted. Whether any particular information 

"relate[s] to secret processes or methods 

of manufacture or production" requires a 

factual determination to be made by the 

Board. Confidential information may be 

forwarded to other state agencies and to 

county and municipal governments, but not 

to the federal government in the absence 

of a federal law so requiring. 

/\ Very truly yours, 

/I Attorney General of Texas 

DAVID M. KENDALL, First Assistant 

Opinion Committee 

jwb 

p. 3530