Case Information
The Attorney General of Texas December 31, 1982
MARK WHITE
Attorney General Supreme Telex Telecopier P. 0. BOX 12546 5121475-2501 Austin. 910/674-1367 TX. 76711. Court Building 512/475-0266 [2548] Mr. Steve Haley Austin, Texas 78711 Texas Department of Agriculture General Counsel P. 0. Box 12847 Agriculture Re: Whether pesticide com- Opinion No. w-575 plaint investigation files held by the Department of are public
information under the Open Records Act 1607 Main St.. Suite 1400 Dallas. TX. 75201-4709 Dear Mr. Haley: 2141742.6944
You have requested our opinion as to whether pesticide complaint 4624 Alberta Ave., Suite 160 investigatory files held by the Texas Department of Agriculture are El Paso. TX. 799052793 available to the public. 9151533.3464 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 9875.003 (department may determine whether chapter 75 applies to a 7131650-0666 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); 76.154 (department may sue to enjoin violation of any provision of 4309 N. Tenth. Suite 6 chapter 76); 76.155 (department may request a prosecuting attorney to McAllen, TX. 76501-1665 5121662.4547 prosecute a violation of any provision of chapter 76). The Department of Agriculture is not a law enforcement agency, 200 Main Plaza, Suite 400 since its "function is essentially regulatory in nature," even though San Antonio, TX. 76205.2797 it is charged with the duty of enforcing its own statutes. open 5121225-4191 Records Decision No. 199 (1978). Thus, the usual standards under section 3(a)(8) applicable to a law enforcement agency in determining An Equal Opportunity/ public access to closed or open files, see Open Records Decision Nos. Affirmative Action Employer 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 . 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 *3 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