The Attorney General of Texas
July 25, 1983
JIM MATTOX
Attorney General
Supreme Court Building
Robert Bernstein, M.D., F.A.C.P. Opiiiop No. JM-48
P 0. BOX 12548 Commissio”er
Austin. TX. 76711- 2548 Texas Department of Health R&: Availability under the
51214752501 1100 West 49th Strert Open Records Act of licenses
T&x 9101874-1367 Austin, Texas 70756 issued by Department of Health
Telecopcer 5121475-0266
relating, to storage, incinera-
tjon, processing or disposal
1607 Main SI., suite 1400 of radioactive wastes
Dallas. TX, 75201-4709
2141742-8944 Dear Dr. Bernstein:
4824 .4lberta Ave.. Suite 160 Ybu have requested our opinion as to the availability under the
El Paso. TX. 799052793 Open Records Act, article 6252-17a, V.T.C.S., of certain license
915,533.3484 applications submitted to the Texas Department of Health. You explain
r‘ that the department has received a request “fqr copies of any new
LO Dallas Ave.. Sue? 202
license or amendments to existing licenses ‘which relate to the
Houston. TX. 77002-6986 storage, incineration, processing, or’ disposal~of radioactive wastes.”
7131650.0666 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 may be withheld under sections 3(a)(4)
806 l3roadway. Suite 312
Lubbock. TX. 79401.3479
nor. 3(a)(lO) of the Open Records Act. Those provisions except from
806,747.5238 disclosure:
(4) information which, if released, would give
4309 N. Tenth. Suite B advantage to competitors or bidders;
McAllen. TX. 76501.1665
5121662-4547
(10) trade secrets and commercial or financial
information obtained from a person and privileged
200 Main Plaza, Suite 400 or confidential by statute or judicial decision.
San Antonio. TX. 78205.2797
5121225-4191
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. See Open Records Decision Nos. 319, 302 (1982); 255 (1980);
201~ (1978) - 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 whom the information
was obtained.” Open Records 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
I--- 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
p. 207
Dr. Robert Bernstein - Page 2 (~~-48)
department information regarding its fjnancial capability, including
capitalization, revenues, value of assets, Andy extent of liabilities.
Whether the second prong of the test is satisfied will depend upon the
facts of each case.
You also ask whether you must treat a request for information as
a continuing request. This office has said that the Open Records Act
applies only to information in existence, and does not require a
governmental body to prepare new information. Open Records Decision
No. 342 (1982). Since the act requires a governmental body to furnish
only information which is Sn existence at the time a request 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 a governmental body
to treat a request for information as a contjnuing one.
SUMMARY
The Open Records Act does not require a
governmental body to treat a request for
inforn~ation as a continuing 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 harm to the competitive position
of the person from whom the information was
obtained.
1/, ~f~yj&&
JIM MATTOX
Attorney General of Texas
TOM GREEN'
First Assistant Attorney General
DAVID R. RICAARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
Colin Carl
Jim Moellinger
p. 208