Open Records Decision No. 233
January 7, 1980

	Re:  Whether monthly rental paid by car rental agencies at city airport is public 
under Open Records Act.

Honorable John C. Ross, Jr.
City Attorney
P. O. Box 2000
Lubbock, Texas  79457

Dear Mr. Ross:

	You request our decision pursuant to section 7 of article 6252-17a, V.T.C.S., the 
Texas Open Records Act.  The City of Lubbock, has received a request for the monthly 
rental figures paid by car rental agencies at the city airport.  The rent is based on a 
percentage of gross revenue from the airport operations.  The City contends that the 
information is excepted from required public disclosure under section 3(a)(4), 3(a)(10), 
or both.

	The relevant portion of section 3(a)(10) excepts from public disclosure:

(10)	. . . commercial and financial information obtained from a 
person and privileged or confidential by statute or judicial decision . 
. . .

(Emphasis added).

	This exception is similar to one contained in the federal Freedom of Information 
Act, but the emphasized language in the Texas statute distinguishes our provision and 
narrows its scope considerably.  See 5 U.S.C. § 552(b)(9).  This office has observed that 
it is unlikely that section 3(a)(10) exempts any records not already within the 3(a)(1) 
blanket exception for all “information deemed confidential by law.”  Attorney General 
Opinion H-258 (1974); Open Records Decision No. 203 (1978).  Neither the City nor 
any of the parties affected have referred us to any applicable statute or judicial decision 
which would make this information privileged or confidential, nor are we aware of any 
such authority.  It is our decision that the information is not excepted from disclosure 
under section 3(a)(10).

	The City also contends that the monthly rental figures are excepted under section 
3(a)(4), which excepts “information which, if disclosed, would give advantage to 
competitors or bidders.”  The City cites the fact that the requestor is another car rental 
agency which does not operate out of the airport in support of its position that this 
exception applies.  The City argues that disclosure of the rental figures would reveal the 
actual income of each of those car rental companies operating out of the airport, and 
would also provide a market share analysis for competitors of those operating out of the 
airport.

	This office has construed the 3(a)(4) exception narrowly, requiring a showing of a 
specific actual or potential harm in a particular competitive situation.  See Open Records 
Decision Nos. 222 (1979); 203, 184 (1978); 170 (1977); 124 (1976); 95, 75 (1975); 48, 
46, 45 (1974).  There is no specific bidding situation involved here.  There is no adequate 
showing of a specific harm which would or is likely to occur from public disclosure of 
the City's rent receipts from these companies.  We decline to conclude that the exception 
is applicable on the basis of the speculation that competitive harm would result from 
disclosure of this information.  It is our decision that the information is not excepted 
under section 3(a)(4).

	Section 6(3) of the Open Records Act specifically makes public:

(3)	information in any account, voucher, or contract dealing with 
the receipt or expenditure of public or other funds by governmental 
bodies, not otherwise made confidential by law . . . .

	One court has said:  “The legislature did not intend for section 6 to diminish the 
force of the exclusions contained in section 3.”  Houston Chronicle Publishing Co. v. 
City of Houston, 531 S.W.2d 177, 185 (Tex. Civ. App. -- Houston [14th Dist.] 1975), 
writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976).  However, section 6(3) does at 
least demonstrate the legislature's intention that information concerning the receipt of 
public funds will ordinarily be available for public inspection.  This is consistent with the 
traditional common law view that books and accounts of public bodies are among the 
most accessible of public records.  See Palacios v. Corbett, 172 S.W. 777 (Tex. Civ. 
App. -- San Antonio 1915, writ ref'd).  We believe that this long-standing policy of 
public access to a governmental body's financial records, combined with the Open 
Records Act's requirements that it be construed liberally in favor of access, see last 
sentence of sec. 1; sec. 3(b) (withholding not authorized “except as specifically stated in 
this section.”); sec. 14(b) (withholding not authorized “except as expressly so provided”); 
14(d) (“Act shall be liberally construed in favor of the granting of any request for 
information”), compel a narrow reading of the exceptions.

	It is our decision that the monthly rental figures based on a percentage of gross 
income paid to the City are not excepted under sections 3(a)(4) or 3(a)(10), and thus are 
public and are required to be disclosed.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Ted L. Hartley
Executive Assistant Attorney General

Prepared by William G Reid
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood