,
THE ATTORNEY GENERAJ~
OF TJcl!Lis
AUSITN. - 78711
February 26, 1975
The Honorable Charles R. Barden, P. E. Opinion No. H- 539
Executive Director
Texas Air Control Board Re: Confidentiality of emis-
8520 Shoal Creek Blvd. sions data supplied to the
Austin. Texas 78758 Texas Air Control Board.
Dear Mr. Barden:
You have requested our opinion as to whether emissions data
supplied to the Texas Air Control Board should be treated as confidential
under any provision of the Texas Clean Air Act, article 4477-5, V. T. C. S.,
or the Open Records Act, article 6252-17a, V. T. C. S.
Section 1.07 of the Clean Air Act prohibits the disclosure by the
Air Control Board of “(i]nformation submitted to the board relating to
secret processes or methods of manufacture or production which is
identified as confidential when submitted. . . . ” In Attorney General
Opinion M-957 (1971), this office not only upheld the Board’s right to
withhold disclosure of such “confidential information, ” but ruled that the
Act required confidentiality whenever “interested parties” objected to
the release of such information. The opinion declared “confidential
information” as used in section 1.07 to be similar to a “trade secret. ”
Trade secrets were likewise exempted from disclosure by the Open -’
Records Act, article 6252-17a, section 3(a)(lO). Other portions of M-957,
which could be construed as permitting certain emissions data to be held
confidentially by the Board, were overruled in Attorney General Opinion
H-276 (1974).
We believe it is clear, however, that neither statute should be
interpreted as embracing emiseionr data within the ambit of nondisclosable
information. Section 2.13 of the Clean Air Act provides thdt “[a]11 informa-
tion, documents and data” which are not excludable under section 1.07 are
open to public inspection. Section 1 of the Open Records Act declares the
p. 2424
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The Honorable Charles R. Barden page 2 (H-539)
public policy of that Act to be that “all persons are, unless otherwise
expressly provided by law, at all times entitled to full and complete
information regarding the affairs of government and the official acts
of those who represent them as public officials and employees, ” and
that “to [this] end, the provisions of this Act shall be liberally cons-
trued. . . .‘I In section 14, it is required that the statute “be liberally
construed in favor of the granting of any request for information. ‘I
On two previous occasions, we have ruled that the Open Records
Act requires public access to particular information in the custody of
the Texas Air Control Board. In Attorney General Opinion H-241 (1974).
a written recommendation by a regional supervisor of the Air Control
Board to a permit engineer regarding whether a particular construction
permit should be issued was deemed pubkinformation. In Attorney
General Opinion H-276 (1974), the names of persons complaining of emissions
from a particular source, as well as their verbatim statements submitted
to the Board, were held disclosable.
Although we believe that, on the basis of these prior opinions,
emissions data is clearly public information, we are also guided by a recent
decision of the United States Court of Appeals for the Fifth Circuit. In
Natural Resources Defense Council, Inc. V. Environmental Protection
Agency, 489 F. 2d 390 (5th Cir. 1974), cert. granted, 95 S. Ct. 39
(hereinafter referred to as , the Court considered a challenge to
the Envir.onmental Protection Agency’s approval of Georgia’s “implementa-
tion plan” under the federal Clean Air Act, 42 U.S. C. $1857, et. A
Georgia statute had prohibited the release of “any information” relating
to “secret processes, devices, or methods of manufacture or production. ”
NRDC at 396. The Court held that this prohibition contravened the federal
Act’s requirement that a state’s implementation plan must provide for
“periodic reports [by polluters] on the nature and amounts of . . . emissions”
and that such reports must be “available . . . for public inspection. ” 3 at
397. Tbe Court concluded that since the Georgia statute precluded the
availability of such information, $e Administrator could not lawfully approve
this aspect of the state’s implementation plan. The Agency was consequently
required to promulgate its own disclosure regulation to replace the inadequate
state ruie.
p. 2425
m .
,
The Honorable Charles R. Barden page 3 (H-539)
We therefore hold that emisrions data supplied to the Texas Air
Control Board may not be treated as confidential under any provision of
the Texas Clean Air Act or the Open Records Act, and that the Board is
required to disclose such information upon request. To the extent that
Attorney General Opinion M-957 (1971) conflicts with this opinion, it is
hereby overruled.
SUMMARY
Emissions data supplied to the Texas Air
Control Board is public information under article
4477-5, V. T. C. S.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
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p. 2426