Untitled Texas Attorney General Opinion ( 1974 )

TWEATTORNEY GENERAX~ OF TEXAS February 26, 1974 The Honorable Charles R. Barden, P. E. Opinion No. H- 241 Executive Secretary Texas Air Control Board Re: Application of Article 820 East 53rd Street 6252-17a, House Bill 6, 63rd Austin, Texas 78751 Leg., to files of the Texas Air Control Board Dear Mr. Barden: Your opinion request concerns the applicability of Article 6252-17a. V. T. C. S. , the Open Records Act of 1973. to “a written recommendation, made following an investigation, from a Regional Supervisor of the Texas. Air Control Board to a permit engineer regarding whether a particular construction permit. . . should be issued. . . . ‘I You ask (1) whether 8 $ 3(11) and/or 3(3) of the Open Records Act apply to such documents so as to except them from public inspection under the Act, and (2) whether th&act that no decision has been reached on whether to grant or deny a permit would make any difference as to the applicability of either. section to these documents. Before considering the applicability of the Open Records Act to the records described in your letter , we must first consider whether such records are made public by other legislation, for we do not believe that the Open Records Act of 1973 operates to repeal or nullify other legislation making information public. The activities of your board are controlled by the Texas Clean Air Act, Article 4477-5, V. T. C. S. Sections 1.07 and 2.13 of that Act provide: *. Section 1.07 “Information submitted to the board relating to secret processes or methods of manufacture or p. 1118 The Honorable Charles R. Bardcn. page 2 (H-241) production which is identified as confidential when submitted shall not be disclosed by any member, employee, or agent of the board. ” Section 2.13 “All information documents and d&t&collected by the board in the performance of its duties are the property of the state. Subject to the limitation of Section 1. 07 of this Act, all records of the board are public records open to inspection by any person during regular office hours. I’ The language of 8 2.13 above, that “all records of the board are public records”, is very broad and we believe it clearly applies to the documents described in your opinion request regardless of whether a decision has’been reached on whether to grant or deny the permit. Accordin#y, it is our opinion that the documents described in your letter are public information without refer- ence to the Open Records Act ani that the legislation making them public infor- mation is not repealed or effected by the Open Records Act. You also requested that we review Opinion No. M-957 (1971) which addressed itself to the question: “Doer the Texar Air Control Board or the Executive Sec- retary have discretion over which items and matters are to be deemed ‘confidential information’ and ‘public records’ as those terms areused in Sections 1.07 and 2.13 of the Texas Clean Air Act? I’. That opinion contained an analysis of various types of “records” and concluded that “files on matters under investigation for violation dthe Texas Clean Air Act” are “evidence or potential evidence for an enforcement action pursuant to Section 4. 02 of the Act” and are “not open to inspec- tion by the public. ” The recommendationa described in your present opinion request do not appear to be in this category and, accordingly, Opinion No. M-957 is not pertinent to your inquiry and we are not called upon to overrule or affirm it. You have asked whether the distinctions made in the analysis in Opinion M-957 are still valid and our answer’tm that we are not in a position to hypothetically discuss distinctions without reference to particular documents. p. 1119 The Honorable Chailes R. Barden. page 3 (H-241) SUMMARY A written recommendation by a regional supervisor of the Texas Air Control Board to a permit engineer regarding whether a particular construction permit should be issued is a public record. Yours very truly, Attorney General of Texas DAVID M. KENDALL, Chairman Opinion Committee p. 1120