The Attorney General of Texas
January 15. 1982
MARK WHITE
Attorney General
Robert Bernstein, M.D. Open Records Decision No. 303
supreme
courtSulldlnQ
Coolmissioner of Health
P. 0. Boa 12545
AUstkl. TX. 75n1 Texas Department of Eealth Re: Whether details o.f the
512l475.2591 1100 West 49th Streht manufacture of medication
Telex @lw74-lS7 Austin, Texas 70756 should be vithheld ~from dis-
TV 512l475.0255 closure under the Open Records
Act
,597 Mskl St.. suit* 1400
osnu. TX. 75201 Dear Dr. Bernstein:
2t4n42-5244
You have requested our decision under the Open Records Act,
Albelts Ave., sune 150
article 6252-17a, V.T.C.S.. as to whether details regarding the
sa.Tx. 79905 manufacture of a certain medication are available to the public.
x%354
Ortho-Tex of San Antonio, the manufacturer of chemolase, a
proteolytic enzyme used in the treatment of lumbar disc disease,
OaJlea Ave. suulte202
recently submitted an application to the Texas Department of Health to
Howtml.Tx. 77m
71- manufacture, sell and distribute chemolase in the state of Texas. A
competitor has requested a copy of that portion of the application
which provides the details of the method of manufacturing chemolase.
m5 snmdwey. @Ate 312 You suggest that this information is excepted from disclosure under
Lubbock. TX. 79401
section 3(s)(lO) of the Open Records Act as:
5mf747a235
trade secrets and commercial or financial
uo9 N. Tenth. Suite 5 information obtained from a person and privileged
McAlbn,Tx. 18501 or confidential by stetute or judicial decision.
512a524547
The section 3(e)(lO) exception is patterned after an almost
200 MM PIUS. suite 400 identical provision in the federal Freedom of Informetion Act. which
San Antonio, TX. 75203 exempts “trade secrets and connnercial or financial information
5%?l22s419~ obtained from any person and privileged or confidential.” 5 U.S.C.
$552(b) (4). When the legislature adopts language from another
An Equel OPPWtUWl jurisdiction, it is presumed to have intended it to have the same
Atfinnatiw Action Emrdow meaning. State v. Weiss, 171 S.W.Zd 848. 851 (Tex. 1943). The
legislative history of the federal provision makes it clear that
manufacturing ,processes were intended to be included within this
exception. The House Report accompanying the legislation notes that
the exception:
. ..uempts such material if it would not
customarily be made public by the person from whom
.
Dr. Robert Bernstein - Page 2
.
it ves obtained by the Government. The l xexption
would include business sales statistics,
inventories, customsr lists, scientific or
manufacturing processes or developments, and
negotiation positions or requirements in the case
of labor-management mediations. (Emphasis added).
House Report No. 1497. 89th Cong.. 2d Sess. 10 (1966). U.S. Code Cong.
h Adm. Naws 2148, 2427. -See Open Records Decision Nos. 255 (1980);
107 (1975).
Since a manufacturing process is clearly within the meaning of
"trade secret," and since the applicant, Ortho-Tex. regards the
information es a "trade secret," we are of the opinion that the
details of the method of manufacturing chemolase are excepted from
disclosure under section 3(a)(lO) of the Open Records Act.
-&-gy&g
Attorney General of Texas
JOliR W. FAINTER, JR.
First Assistant Attorney General
RKRARD E. GRAT XXI
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Walter Davis
Rick Gilpin
Jim Moellinger