Open Records Decision No. 296
December 18, 1981

	Re:  Public availability under the Open Records Act of information relating to air 
pollution supplied to city by corporation

Mr. Edward H. Perry
Assistant City Attorney
City Hall
Dallas, Texas  75201

Dear Mr. Perry:

	Two city newspaper reporters have asked for certain information in your 
possession.  You have agreed to divulge much of the requested material, but you seek to 
withhold copies of the complaints made to the city's Environmental Health and 
Conservation Department concerning lead pollution or poisoning in the city as well as 
certain information sent to the city by the RSR Corporation.

	You ask whether the Open Records Act, article 6252-17a, V.T.C.S., authorizes 
you to withhold this information.  With respect to the complaints, you contend that 
section 3(a)(1) of the act permits you to withhold information contained therein that 
would tend to reveal the identities of those who furnish information of possible violations 
of air pollution laws and ordinances to city officials charged with enforcement of same.  
With respect to the material submitted by the RSR Corporation, you contend that certain 
portions contain “trade secrets” which may be withheld under sections 3(a)(4) and/or 
3(a)(10) of the act.

	Section 3 of the Open Records Act authorizes you to withhold:

	(1)	information deemed confidential by law, either 
Constitutional, statutory, or by judicial decision;

	. . .

	(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.

	We first consider the complaints.  We understand, based on previous 
correspondence with your office, that the city's Environmental Health and Conservation 
Department enforces local and state requirements pertaining to air pollution.  
Enforcement options include criminal prosecution for violations of city ordinances, 
regulations, or the Texas Penal Code.  Violations of city ordinances constitute Class C 
misdemeanors.

	In Open Records Decision No. 279 (1981), we determined that the identity of a 
person who reports a zoning ordinance violation to a city is excepted from disclosure as 
information deemed confidential by the informer's privilege.  There, as here, violators of 
the ordinance in question were guilty of criminal offenses, i.e., Class C misdemeanors.

	Based on Open Records Decision No. 279 (1981), we conclude that you may 
withhold information that tends to identify those who made complaints to the city 
concerning lead pollution or poisoning.

	We next consider the information which you contend constitutes “trade secrets,” 
which is identified in your letter to this office as “Exhibit C.”  With respect to this 
information, counsel for the RSR Corporation stated, in a letter to you, that:

It is our understanding that the only RSR information currently 
being withheld relates to raw material usage, production data, and 
production and emission control processes and associated equipment 
. . .  RSR has spent many years and millions of dollars developing 
its production process, modifying its production and emissions 
control equipment, and adjusting its blend of raw material input.  
The result has been a unique technology and a high quality pure lead 
product that have enabled the company to survive in the highly 
competitive lead recycling industry.  If a corporation -- without 
investing the time and money RSR has invested -- were to have 
access to information which revealed the blend of raw materials 
used by RSR, or the design of RSR's equipment, or the nature of 
RSR's production process and equipment, that competitor would 
have a substantial, and, we submit, a very unfair, advantage.

	We have recently discussed the applicability of section 3(a)(10).  See Open 
Records Decision Nos. 255, 238 (1980); 175 (1977).  In those decisions we observed that 
Texas has adopted the definition of “trade secret” contained in the Restatement of Torts, 
section 757, comment (b) (1939).  Hyde Corporation v. Huffines, 314 S.W.2d 763 (Tex. 
1958); see also Luccous v. J.C. Kinley Co., 376 S.W.2d 336 (Tex. 1964).  That definition 
provides that:

A trade secret may consist of any formula, pattern, device or 
compilation of information which is used in one's business, and 
which gives him an opportunity to obtain an advantage over 
competitors who do not know or use it.  It may be a formula for a 
chemical compound, a process of manufacturing, treating or 
preserving materials, a pattern for a machine or other device, or a 
list of customers . . .  (Emphasis added).

	The Restatement lists six criteria to be used in determining whether particular 
information qualifies as a “trade secret”:

(1)	the extent to which the information is known outside of his 
business; (2) the extent to which it is known by employees and 
others involved in his business; (3) the extent of measures taken by 
him to guard the secrecy of the information; (4) the value of the 
information to him and to his competitors; (5) the amount of effort 
or money expended by him in developing the information; (6) the 
ease or difficulty with which the information could be properly 
acquired or duplicated by others.

Restatement of Torts §757, comment (b)(1939).

	With respect to these criteria, RSR's counsel stated in the aforementioned letter 
that:

RSR believes that the information contained in the requested 
documents is known outside the company only by the few 
government officials to whom it has been provided.  Indeed, the 
information is known by only a relatively small number of RSR 
employees; RSR employees are provided information on a 'need to 
know' basis only and with strict non-disclosure instructions.  
Stringent measures have been taken by the company to prevent 
unauthorized disclosure of information.  All RSR facilities are 
provided with a security force and are closed to all non-RSR 
employees.  Visits to RSR facilities from government personnel, 
other than mandated inspection and enforcement visits, require a 
written predetermination of the information sought and the intended 
use of the information to be gathered.  In addition to those 
restrictions, contractors of government agencies are required to sign 
third party confidentiality agreements with RSR.  Thus, RSR 
believes that its competitors would have great difficulty properly 
acquiring or duplicating the information in question here.

	In order to be entitled to the protection of the trade secret doctrine:

the owner of a trade secret must do something to protect itself from 
the use of such secret.

Rimes v. Club Corp. of America, 542 S.W.2d 909, 913 (Tex. Civ. App. - Dallas 1976, 
writ ref'd n.r.e.).  See Open Records Decision Nos. 255 (1980); 203, 184 (1978); 175 
(1977).  According to the above quotation RSR Corporation has taken extensive 
measures to protect the confidentiality of its “trade secrets.”  Based on the facts presented 
we conclude that the first three of the Restatement's criteria, supra, are satisfied.  
Compare Open Records Decision Nos. 255 (1980); 184 (1978) (no evidence of attempts 
to maintain confidentiality of information there involved).

	Turning to the nature of the information itself, we have examined the materials 
contained in “Exhibit C,” and are of the opinion that said materials contain “trade 
secrets” within the meaning of the above standards.  The information is largely technical 
in nature and, as previously noted, related to raw material usage, production methods, 
and production and emission control processes and associated equipment.  The value of 
this information to RSR Corporation and to its competition and the expense involved in 
developing it cannot be doubted, and we also believe it is likely that specific harm would 
inure to the corporation if the information is released and its competitors thereby 
obtained it.  Compare Open Records Decision No. 203 (1978) (no evidence that cab 
companies would suffer specific harm if information there involved were released).  We 
therefore conclude that the last three of the aforementioned criteria are satisfied.

	For these reasons, we conclude that you may withhold the information contained 
in Exhibit C under section 3(a)(10).  Our conclusion renders a discussion of section 
3(a)(4) unnecessary.

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 Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin
Jim Moellinger