Untitled Texas Attorney General Opinion ( 1982 )


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  • . . 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

Document Info

Docket Number: MW-575

Judges: Mark White

Filed Date: 7/2/1982

Precedential Status: Precedential

Modified Date: 2/18/2017