Open Records Decision No. 256
October 17, 1980

	Re:  Whether information held by a city concerning job market survey is public 
under the Open Records Act

Mr. Lee Holt
City Attorney
City Hall
Dallas, Texas  75201

Dear Mr. Holt:

	You have requested our opinion as to whether information regarding a job market 
survey is available to the public under the Open Records Act, article 6252-17a, V.T.C.S.  
In mid-1979, the Urban Planning Department of the City of Dallas undertook a job 
market survey for the purpose of determining whether salaries paid by the city to 
photographers and darkroom technicians were comparable to those in private industry.  A 
set of longhand notes reflect wage rate information obtained from the specific employers 
who were contacted.  An inter-office memorandum summarizes the results of the survey, 
draws conclusion, and makes recommendations.

	With regard to the longhand notes, we believe the information obtained from 
specific private employers is excepted from disclosure by section 3(a)(10) of the Open 
Records Act as:

trade secrets and commercial or financial information obtained from 
a person and privileged or confidential by statute or by judicial 
decision.

The leading federal case, National Parks & Conservation Association v. Morton, 498 
F. 2d 765 (D.C. Cir. 1974), established the following standard for determining the 
confidentiality of financial information:

[C]ommercial or financial matter is 'confidential' for purposes of the 
exemption if disclosure of the information is likely to have either of 
the following effects:  (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.

498 F. 2d at 770.  You indicate that no city ordinance requires a private employer to 
cooperate with city officials in a job market survey, that each employer was assured that 
the confidentiality of his answers would be maintained, and that “it is very unlikely that 
the city will be able to conduct complete job market surveys in the future if companies 
know that salary data could be publicly released.”  In our opinion, since release of 
information reflecting wage rates paid by individual employers is likely to “impair the 
Government's ability to obtain necessary information in the future,” the longhand notes 
reflecting this information are excepted from disclosure by section 3(a)(10).  See Open 
Records Decision No. 173 (1977).

	On the other hand, the factual information contained in the memorandum does 
not identify individual companies, but merely the “average low range” and “average high 
range” of various positions in the private sector.  Unlike the situation in Open Records 
Decision No. 179 (1977), the city is not presently engaged in collective bargaining 
negotiations with its photographic employees, and thus, release of this purely factual data 
would not “disclose the internal deliberative process of the city.”  The latter part of the 
memorandum does, however, draw conclusions and make recommendations regarding 
the wages paid to city photographers.  That portion is excepted from disclosure by 
section 3(a)(11) of the Open Records Act, since it clearly constitutes “advice and opinion 
on policy matters.”  We hold therefore that the factual information contained in the 
memorandum at issue should be extracted and made available to the requestor.  The 
remainder of the memorandum is excepted from disclosure under section 3(a)(11).  We 
have marked that portion which may be withheld.

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 Garrison, Acting Chairman
Jon Bible
Rick Gilpin