Untitled Texas Attorney General Opinion ( 1976 )

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 con-
fidential 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 deter-
mining whether information submitted to the Board is dis-
closable 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 manu-
facture. 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 non-
disclosable 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 deter-
mining whether information may be classified as a "trade
secret."
The Texas Supreme Court in Luccous v. J.C. Kinle
376 S.W.2d 336, at 330 (Tex.-Suc m), 4 that
t e generally accepted definition of a "trade secret" is
??=I
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 infor-
mation 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 (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 Corporation v A ri-Sul Inc
'mv. App. -- Da~a``r``f'~4``w``~;2````
Manufacturing Cornan v. Locke' 454 S W 2d 4il; 433-r
~n%~'l970,
(Tex, Civ. App. 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 confidentially-
labeled 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 infor-
mation to other state agencies. In Attorney General Opinion
H-242 (1975), we held that information which was not acces-
sible to the public under the Open Records Act may never-
theless "be transferred between state agencies without
violating its confidential character," on the basis of a
recognized need to maintain an unrestricted flow of infor-
mation 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, 220 S.W. 761, 763 (Tex. Sup.
1920); State v
- -- -$&$j$~:d3;$,s;~;2d
Civ. App. ;!$e7;3 c;:i,,
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 informa-
tion 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 permP=
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 sub-
mitted. 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