Could the Health Department withhold radioactive-waste license applicants' balance sheets, and did it have to treat an information request as continuing into the future?
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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-48: Radioactive-Waste License Balance Sheets
Plain-English summary
JM-48 concluded that balance sheets submitted with radioactive-waste license applications were not automatically confidential. Whether they could be withheld depended on particular facts showing that disclosure would cause substantial harm to the submitting person's competitive position.
"Whether balance sheets are excepted from disclosure depends upon the particular facts involved; they will be excepted from disclosure only if release would cause substantial harm to the competitive position of the person from whom the information was obtained."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
The competitive-bidding exception did not apply because the Attorney General had construed it as limited to bidding situations before a contract award.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
The commercial-information exception used a two-part test: disclosure had to be likely either to impair future government access to necessary information or to substantially harm the submitter's competitive position. Mandatory license rules defeated the first theory because the department could continue requiring the information.
"Section 3(a)(10) excepts information if 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.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf"Release of a company's balance sheet will not impair the department's ability to obtain the information in the future, since article 44.30(b) . . . requires an applicant for a radioactive waste license to submit to the department information regarding its financial capability."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
JM-48 also held that the Open Records Act applied only to information existing when the request was made and did not require the department to keep treating the request as covering future records.
"In our opinion, the act does not require a governmental body to treat a request for information as a continuing one."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
Currency note
This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What records had been requested?
Copies of new licenses and amendments concerning storage, incineration, processing, or disposal of radioactive waste.
"[The department] has received a request 'for copies of any new license or amendments to existing licenses which relate to the storage, incineration, processing, or disposal of radioactive wastes.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
What had the department previously disclosed?
It said it had made the requested information available in the past except for balance sheets.
"You state that, except for balance sheets, you have made such information available to requesters in the past."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
Did the bidder exception protect the balance sheets?
No. That exception applied only to a bidding situation before award of a contract, not to these license applications.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
What did the commercial-information exception cover?
Trade secrets and commercial or financial information obtained from a person and made privileged or confidential by statute or judicial decision.
"[T]rade secrets and commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
Why could the department still obtain financial information later?
Radiation regulations required a license applicant to submit financial-capability information, including capitalization, revenue, assets, and liabilities.
"[The regulation] requires an applicant for a radioactive waste license to submit to the department information regarding its financial capability, including capitalization, revenues, value of assets, and extent of liabilities."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
Was competitive harm presumed?
No. The second prong depended on the specific facts of each case.
"Whether the second prong of the test is satisfied will depend upon the facts of each case."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
Did the Act require creation of new information?
No. It applied only to existing information and did not require a governmental body to prepare new records.
"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
Did a request automatically cover later-created records?
No.
"Since the act requires a governmental body to furnish only information which is in 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 may become available in the future."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
Background and statutory framework
The Health Commissioner asked about disclosure of license applications under the former Open Records Act and whether a request had to remain active for future licenses or amendments.
"You have requested our opinion as to the availability under the Open Records Act . . . of certain license applications submitted to the Texas Department of Health."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
The cited exceptions protected information whose release would give an advantage to competitors or bidders and qualifying trade-secret, commercial, or financial information.
"[I]nformation which, if released, would give advantage to competitors or bidders."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf"[T]rade secrets and commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
Holding
"The Open Records Act does not require a governmental body to treat a request for information as a continuing one. Whether balance sheets are excepted from disclosure depends upon the particular facts involved; they will be excepted from disclosure only if release would cause substantial harm to the competitive position of the person from whom the information was obtained."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
Citations and references
Statutes and regulations discussed by JM-48:
- "article 6252-17a, V.T.C.S." Official PDF
- "section 3(a)(4) of the Open Records Act" Official PDF
- "section 3(a)(10) of the Open Records Act" Official PDF
- "article 44.30(b) of the Texas Regulations for Control of Radiation" Official PDF
- "article 4590f, V.T.C.S." Official PDF
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0048
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0048.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
July 25, 1983
Robert Bernstein, M.D., F.A.C.P.
Commissioner
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756
Opinion No. JM-48
Re: Availability under the Open Records Act of licenses issued by Department of Health relating to storage, incineration, processing or disposal of radioactive wastes
Dear Dr. Bernstein:
You have requested our opinion as to the availability under the Open Records Act, article 6252-17a, V.T.C.S., of certain license applications submitted to the Texas Department of Health. You explain that the department has received a request "for copies of any new license or amendments to existing licenses which relate to the storage, incineration, processing, or disposal of radioactive wastes." You state that, except for balance sheets, you have made such information available to requesters in the past. You first ask whether only the balance sheets may be withheld under sections 3(a)(4) or 3(a)(10) of the Open Records Act. Those provisions except from disclosure:
(4) information which, if released, would give advantage to competitors or bidders;
(10) trade secrets and commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision.
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)(10) excepts information if 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 the future, since article 44.30(b) of the Texas Regulations for Control of Radiation, promulgated under the authority of article 4590f, V.T.C.S., requires an applicant for a radioactive waste license to submit to the department information regarding its financial capability, including capitalization, revenues, value of assets, and 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 in 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 may become available in the future. In our opinion, the act does not require a governmental body to treat a request for information as a continuing one.
SUMMARY
The Open Records Act does not require a governmental body to treat a request for information as a continuing one. Whether balance sheets are excepted from disclosure depends upon the particular facts involved; they will be excepted from disclosure only if release would cause substantial harm to the competitive position of the person from whom the information was obtained.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
Colin Carl
Jim Moellinger
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