. .
The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Mr. Steve Haley Opinion No. w-575
Supreme Court Building
General Counsel
P. 0. BOX 12546
Austin. TX. 76711. 2548
Texas Department of Agriculture Re: Whether pesticide com-
5121475-2501 P. 0. Box 12847 plaint investigation files
Telex 910/674-1367 Austin, Texas 78711 held by the Department of
Telecopier 512/475-0266 Agriculture are public
information under the Open
1607 Main St.. Suite 1400
Records Act
Dallas. TX. 75201-4709
2141742.6944 Dear Mr. Haley:
You have requested our opinion as to whether pesticide complaint
4624 Alberta Ave., Suite 160
El Paso. TX. 799052793
investigatory files held by the Texas Department of Agriculture are
9151533.3464 available to the public.
The Department of Agriculture has broad regulatory responsibility
1220 0alk.s Ave., Suite 202
for the state's pesticide programs. See, e.g.. Tex. Agriculture Code
Houston, TX. 77002.6966
7131650-0666
9875.003 (department may determine whether chapter 75 applies to a
substance); 75.018 (department may promulgate rules under chapter 75);
76.047 (department may deny or cancel use of a regulated pesticide);
606 Broadway. Suite 312 76.075 (department may require a licensed pesticide dealer to submit
Lubbock, TX. 79401.3479
records); 76.116 (department may suspend, modify or revoke any
6061747.5238
provision in the license of a certified applicator); 76.153
(department may issue a stop-sale order regarding use of a pesticide);
4309 N. Tenth. Suite 6 76.154 (department may sue to enjoin violation of any provision of
McAllen, TX. 76501-1665 chapter 76); 76.155 (department may request a prosecuting attorney to
5121662.4547
prosecute a violation of any provision of chapter 76).
200 Main Plaza, Suite 400 The Department of Agriculture is not a law enforcement agency,
San Antonio, TX. 76205.2797 since its "function is essentially regulatory in nature," even though
5121225-4191 it is charged with the duty of enforcing its own statutes. open
Records Decision No. 199 (1978). Thus, the usual standards under
An Equal Opportunity/ section 3(a)(8) applicable to a law enforcement agency in determining
Affirmative Action Employer public access to closed or open files, see Open Records Decision Nos.
127 (1976) and 252 (1980), do not applyxthe department.
When an investigatory file is open, however, and there exists a
reasonable probability of criminal prosecution, even a non-law
enforcement agency may be able to claim the sect+ 3(a)(8) exception
as to that file. Open Records Decision No. 297, 286 (1981).
Likewise, as to files which have been closed, whether by prosecution
or by administrative determination, the department is entitled to
claim an exception under section 3(a)(8) as to any portion of such
p. 2125
. . .
Mr. Steve Haley - Page 2 (MN-575)
files which a law enforcement agency has determined that release
"would unduly interfere with law enforcement and crime prevention."
Open Records Decision Nos. 313 (1982); 297 (1981). See Ex parte
Pruitt. 551 S.W.Zd 706 (Tex. 1977). The law enforcementagency must
demonstrate how and why release of the information would unduly
interfere with law enforcement, unless the information on its face
reveals this. Open Records Decision No. 313 (1982).
As to open investigatory files which relate to civil, rather than
criminal, matters, the Department of Agriculture may withhold all
information relevant to the particular file so long as the attorney
for the department determines that it should be withheld from public
inspection in accordance with section 3(a)(3) of the Open Records Act.
The attorney must find that litigation is reasonably likely to result
and that the particular information to be withheld is relevant to that
litigation. See Open Records Decision Nos. 311 (1982); 289 (1981);
139 (1976). Since section 3(a)(3) is applicable only to pending or
potential litigation, however, the exception may not be invoked after
a file has been closed, whether by prosecution or otherwise. If a
dispute arises about the application of 3(a)(3) to a particular file,
the matter should be referred to this office. V.T.C.S. art. 6252-17a,
57.
The informant's privilege under section 3(a)(l) is applicable not
only to law enforcement agencies, but also to "administrative
officials having a duty of inspection or law enforcement within their
particular spheres." Open Records Decision Nos. 285 (1981); 279
(1981). As we have previously observed, "unless [informant]
confidentiality is maintained, voluntary citizen cooperation with law
enforcement investigations might be compromised." Open Records
Decision No. 285 (1981). Thus, even as to a closed civil file, the
Department of Agriculture may withhold the names of informants where
it deems such action necessary to promote future citizen cooperation.
Whether the privilege may also be extended to the contents of a
statement made by an informant depends upon the circumstances of each
particular statement and accordingly, must be determined on a
case-by-case basis. -See Open Records Decision No. 285 (1981).
SUMMARY
Pending pesticide complaint investigatory files
held by the Texas Department of Agriculture may
generally be withheld from public disclosure under
section 3(a)(3) of the Open Records Act.
-MARK WHITE
Attorney General of Texas
p. 2126
Mr. Steve Haley - Page 3 (Mw-575)
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
p. 2127