Open Records Decision No. 322
December 20, 1982

Re:  City Air Pollution Control Division investigative records of chemical company

Honorable Kathryn J. Whitmire
Mayor
City of Houston
P. O. Box 1562
Houston, Texas  77251

Dear Ms. Whitmire:

	You have requested our opinion on whether a file is subject to exception from 
public disclosure under the Open Records Act, article 6252-17a, section 3(a)(3).

	Section 3(a)(3) of article 6252-17a exempts 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.

	The file about which you inquire is composed of records pertaining to the USS 
Chemical Company, compiled by the city pursuant to article 4477-5, section 4.03, 
V.T.C.S., the Clean Air Act.

	Generally, emissions data is public information under article 4477-5, section 2.13, 
V.T.C.S., applicable to local governments through section 5.01(b) of the act.  Attorney 
General Opinions H-635, H-539 (1975); H-276, H-241 (1974).

	A suit styled Pascoe, et al v. U.S. Steel Corporation d/b/a/ U.S. Steel Chemical, 
Cause No. 82-22987 has been filed against USS Chemical.  A pre-trial conference was 
held on June 23, 1982, at which time plaintiffs' counsel indicated that the city of Houston 
might be joined as a co-defendant in the lawsuit.  The presiding judge suggested adding 
the city as an involuntary plaintiff.  A second pre-trial conference is set for September 
27, 1982.  Plaintiffs' counsel stated in a letter dated July 29, 1982, that:

At this time, no final decision has been made with respect to the city 
of Houston's being made a party to this lawsuit, either as a Co-
Defendant, or . . . an 'involuntary plaintiff.'  Such determination 
must await additional discovery and further consultation with my 
clients.

	You state that the file was developed as a basis for any litigation the city might 
initiate against USS Chemical pursuant to section 4.03 of the Clean Air Act.  The city 
may not exercise any enforcement power under section 4.03, however, unless the 
Houston City Council adopts a resolution authorizing the city attorney to exercise such 
power.  V.T.C.S. art 4477-5, § 4.03.  To date, the city council has not adopted such a 
resolution.

	You have suggested that the file may be withheld since the city is contemplating 
litigation against USS Chemical, and because the city is very likely to be joined in the 
previously cited lawsuit.

	Since the city has not adopted the resolution which is a prerequisite to bringing a 
lawsuit, we do not believe section 3(a)(3) can be invoked on the basis of litigation that 
the city anticipates bringing.  However, in view of the pending lawsuit and the likelihood 
that the city will become a party to the lawsuit, we agree that the file may remain closed 
until the issue is determine.  Either party may advise us as to the determination of the 
matter.

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 Patricia Hinojosa
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger