The Honorable Charles Barden, P.E. OpinionNo. B-836

Executive Director Texas Air Control Board Re: Whether certain 0520 Shoal Creek Boulevard informationmaintained 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 CleanAir Act, article 4477-5, V.T.C.S. Section 1.07provides:

Information submitted to the [Texas Air Control] [Bloardrelatingto secret processes or method8 of manufactureor production which is identifiedaa confidentialwhen eubmitted shallnot be disclosed by any member, employee,or agent of the [Bloard.

You ask:

1. Whether employees of theTexas Air

Control Board may make public information which has been labeledas 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 inmaking the latter determination1

2. how broadly the Board should interpret the meaning of 'relatingto secret processes, or method8 of manufactureor proauction'; and

3. whether confidential informationmay be forwarded to other governmentalbodies.

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

Section 1.07 establishesa two-pronged test for determining whether information submitted to the Board is disclosable to the public. In order to be deemed confidential, such informationmust: (1)relate to secretprocesses 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 sufficientto invoke the confidentialityprovision of section 1.07. Thus,we. conclude that the Board may make public any information which does not relate to secretprocesses or methods **of** manufacture, even though that informationhas been labeled
as confidential at the time of submission.

The Act does not specify the proceduresby which the Board is to make the determination as to whether particular informationrelates to secret processes or methods of manufacture. Such proceduresmust be devised by the Board, in accordance with section 3.01of the CleanAir 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 Boardwhich is chargedwith administering the provhions of the Clean Air Act, and it is the Boardwhich 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 specifyhow broadly the Board should interpret the language of section 1.07,which makes nondisclosable confidentially-labeledinformation "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 particularunit 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.3527The Honorable Charles Barden - page 3 (H-831)

General Opinion H-635 (1975). In accordancewith our previous decisions, it remains our opinion that emissionsdata must be disclosed. Inmaking a decision as to thedisclosability of other confidentially-labeledinformation,however, the Board might consider the criteria which courts use in determining whether information may be classifiedas 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 "tradesecret" is that contained in the Restatement of Torts, section 757, which is statedas follows:

b. Definition of trade secret. A trade secretmay consist of any formula, pattern, **device** or compilation of information which is used in one's business, and which gives.him an opportunityto 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, treatingor preservingmaterials, a pattern **for** a machine or other device, or a listof customers

. . . . A trade secret is a process or device for continuoususe 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 (IService Co. v. G&G -- Servica, Tl? KW.‘lh781,789ex. Sup.-5 H ffines, 314 S.W.Zd 763, 776-777 (Tex.Sup. &em&al Corporationv A ri-Sul Inc 'mv. App. -- Da~a~~r~~f'~4~~w~~~;2~~~~ ManufacturingCorn an v. Locke' 454 S W 2d 4il; 433-r ~n%~'l970, Ao'writ);Brown (Tex,Civ. App.
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.3528The Honorable Charles Barden - page 4 (H-830

In accordancewith the definitions and examples in these
cases and other criteriawhich it may devise, the Board is required to make a determinationof 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 iswhether informationdetermined to be confidentialmay be disclosed to other governmental bodies. In our opinion, thepolicy of interagency cooperation would permit the Board to disclose such information to other state agencies. In Attorney GeneralOpinion H-242 (1975),we held that information which was not accessible to the public under the Open Records Act may nevertheless "be transferredbetween state agencieswithout violating its confidentialcharacter," on the basis of a recognized need tomaintain an unrestricted flow of information between state agencies. See Attorney GeneralOpinion H-683 (1975);Attorney General OpTion M-713 (1970). Likewise, confidential informationmay be disclosable to countyand municipal governmentswhich are recognized as agenciesof 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 cooperatewith

. . . the federal government," section 3.19(4),we do not believe that the Board may thereby disclose confidential informationto the federal government. As we stated in Attorney General Opinion H-242 (19741,the policy supporting interchangeof information is absent when a federalagency requests information that is not requiredby law to be disclosed to it, since the state cannot effectively insure that the federalagencywill maintain the confidentialityof the information. Although the state may permit the federal government access to P= information in the state'spossession, it may not perm t access to non-disclosable information, unless some other law requires its disclosure. Thus, absent a federal law requiring

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

the Board to disclose the information, it is our opinion that information which is determined to be confidentialmay not be disclosea to the federalgovernment or to any agency thereof.

SUMMARY

The Texas Air ControlBoard may make public any informationwhich does not relate to secret processesor methods of manufacture
or production, even though such information has been labeledas confidentialwhen submitted. Whether any particular information "relate[s] to secretprocesses or methods of manufacture or production" requires a factual determination to be made by the Board. Confidential informationmay 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 trulyyours, 

# /I Attorney General of Texas

DAVID M. KENDALL, FirstAssistant

Opinion Committee jwb

p. 3530