Open Records Decision No. 280
September 22, 1981

	Re:  Availability under the Open Records Act of research done at Texas 
Veterinary Medical Diagnostic Laboratory

Mr. James B. Bond
General Counsel
Texas A & M University System
College Station, Texas  77843

Dear Mr. Bond:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to the availability of information relating to certain research performed at 
the Texas Veterinary Medical Diagnostic Laboratory [hereinafter “TVMDL”].  Although 
the TVMDL is not a part of the Texas A & M University System, it is governed by the 
system's board of regents.

	The director of the TVMDL is presently the defendant in a lawsuit filed by Impro 
Products, Inc., alleging that “certain statements made by [the director] in the course and 
scope of his professional duties constituted a type of libel referred to by the plaintiff as 
‘product disparagement.’”  Notice has been given that a claim may be made against the 
TVMDL, Texas A & M University, and the state of Texas.  The director is being 
represented in this cause of action both by this office and by the office of general counsel 
of the university system.  The plaintiff in the pending action against the director now 
seeks to obtain “all information within the control of the Texas Veterinary Medical 
Diagnostic Laboratory or the Texas A & M University System relating to the funding, 
authorization and publication of research and the actual research for the article entitled 
‘Antibody in “Impro,” (Immune Protein) a Commercial Whey Antibody Blend,’ which 
was published in the September, 1980 issue of the Journal of Dairy Science.”

	The requestor contends that this information is available under section 6(5) of 
article 6252-17a, which provides that certain information is specifically made public.  
However, as the court observed in Houston Chronicle Publishing Co. v. City of Houston, 
531 S.W. 2d 177 (Tex. Civ. App. - Houston [14th Dist.] 1975), writ ref'd n.r.e. per 
curiam, 536 S.W. 2d 559 (Tex. 1976), section 6 expressly states that “without limiting 
the meaning of other sections of this Act . . .” certain information is made public.  At 
page 185, the court stated that:

The legislature did not intend for section 6 to diminish the force of 
the exclusions contained in section 3.

Thus, in our opinion, we need only determine whether the material at issue here is 
excepted under section 3(a)(3).

	Section 3(a)(3) of the Open Records Act excepts from disclosure:

information relating to litigation of a criminal or civil nature and 
settlement negotiations, to which the state or political subdivision is, 
or may be, a party, or to which an officer or employee of the state or 
political subdivision, as a consequence of his office or employment, 
is or may be a party, that the attorney general or the respective 
attorneys of the various political subdivisions has determined should 
be withheld from public inspection.

In this case, an officer of the TVMDL, a state agency, is already a party to civil litigation 
as a consequence of his office.  The assistant attorney general handling this case has 
determined that the requested information “should be withheld from public inspection.”  
In our opinion, such determination, coupled with the existence of pending litigation 
which is clearly related to the requested information, clearly invokes the protection of 
section 3(a)(3).  Accordingly, the research material at issue here is excepted from 
disclosure thereunder.  Open Records Decision No. 266 (1981).

Very truly yours,

Mark White
Attorney General of Texas

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
Walter Davis
Rick Gilpin
Jim Moellinger