*1 The Attorney General of Texas July 25, 1983
JIM MATTOX
Attorney General
Supreme P 0. BOX 12548 Telecopcer Austin. T&x [51214752501] 9101874-1367 TX. 76711- Court Building 5121475-0266 [2548] Texas Department of Health Austin, Texas Robert Bernstein, M.D., F.A.C.P. Commissio”er 1100 West 49th Strert 70756 Open Records Act of R&: Availability Opiiiop No. JM-48 issued by Department of Health relating, to storage, under incinera- licenses the
tjon, processing or disposal Dallas. 2141742-8944 1607 Main SI., suite TX, 75201-4709 [1400] Dear Dr. Bernstein: of radioactive wastes [4824] 915,533.3484 El Paso. TX. 799052793 .4lberta Ave.. Suite 160 Open Records Act, applications Ybu have requested submitted article to the Texas Department of Health. our opinion 6252-17a, as to the availability V.T.C.S., of certain You explain under the license that the department has received a request “fqr copies of any new r‘ license or amendments to existing licenses ‘which relate to the LO Dallas Ave.. Sue? 202 storage, incineration, processing, or’ disposal~of radioactive wastes.” Houston. TX. 77002-6986 You state that, excepts’ for balance sheets, you have made such 7131650.0666 information available to requesters in the past. You first ask [806] Lubbock. 806,747.5238 l3roadway. TX. 79401.3479 Suite 312 nor. 3(a)(lO) whether only the balance disclosure: of the Open Records Act. sheets may be withheld under sections Those provisions except 3(a)(4) from
(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 or confidential by statute or judicial decision. 200 Main Plaza, Suite 400 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 future, since the 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