Open Records Decision No. 306
February 1, 1982

	Re:  Whether copy of winning telecommunications consulting firm proposal held 
by the city of Austin is public under the Open Records Act

Mr. Albert Del Rosa
Acting City Attorney
City of Austin
P. O. Box 1088
Austin, Texas  78767

Dear Mr. Harris:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to whether a proposal submitted by a telecommunications consulting firm is 
available to the public.  You state that on June 11, 1981, the Austin City Council, on the 
basis of requested bids, awarded to the Warner Whitney Group, Inc. a contract to provide 
telecommunications system consultant services for the city of Austin.  On July 8, 1981, 
one of the unsuccessful bidders requested a copy of the winning proposal.  You suggest 
that portions of the proposal are excepted from disclosure by sections 3(a)(4) and 
3(a)(10) of the Open Records Act, which authorize the withholding of:

	(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.

	Warner Whitney contends that sections 2, 4, 5, 6 and 8 of its proposal should be 
withheld.  Sections 4 and 6, however, merely identify the personnel who would be 
assigned to the project and contain resumes listing the education and experience of 
Warner Whitney employees.  As this office said in Open Records Decision No. 175 
(1977):

resumes listing the education and experience of . . . employees . . . 
cannot . . . reasonably be said to fall within the 'trade secret' or any 
other exception to the Open Records Act.

In our opinion, the information contained in sections 4 and 6 are not excepted from 
disclosure.

	Section 2 is composed of Warner Whitney's system concept, scope of work and 
program.  As we have frequently observed, Open Records Decision Nos. 255, 238 
(1980); 175 (1977), Texas courts have adopted the definition of trade secret contained in 
the Restatement of Torts, section 757(b) (1939).  Hyde Corporation v. Huffines, 314 
S.W.2d 763 (Tex. 1958).  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.

	The company has stated the following in a letter submitted to your office:

. . . [o]ur scope of work as submitted contains the methodology 
which we have developed over many years of completing successful 
engagements and is considered unique to our firm . . . .  The 
telecommunications consulting industry, from its inception in the 
1950's, has been a very competitive industry.  The scope of 
consulting work, the study methodology employed, staffing 
approach, professional fee structures and the financial statements are 
all closely held tools of successful management consulting firms 
specializing in communications consulting . . . .  Our approach to 
such an assignment as outlined above are proprietary tools of our 
consulting practice.  As a result we do not permit the release of this 
information by our client without our express permission.  In 
addition, our firm and our personnel have developed over the past 
26 years bidding procurement documents for communication system 
acquisitions, communication engineering approaches, report formats 
to management, etc.  Should the public information statute require 
the release of this information to anyone requesting the same, 
particularly a person or persons attempting to educate themselves in 
an industry we have developed and excelled in, I would respectfully 
request that our firm and our proposal be withdrawn from the city of 
Austin and the award be presented to the next qualified 
organization.

In our opinion, this statement by Warner Whitney indicates substantial compliance with 
the criteria of the Restatement.  See Open Records Decision No. 296 (1981).  As a result, 
we conclude that the material contained in section 2 of the proposal is excepted from 
disclosure by section 3(a)(10) of the Open Records Act.

	Section 5 consists of a detailed list of clients and related information.  In Open 
Records Decision No. 155 (1980), we said that customer lists are excepted from 
disclosure under section 3(a)(10).  See Open Records Decision No. 107 (1975).  
Accordingly, section 5 may be withheld in its entirety from disclosure.

	Section 8 contains Warner Whitney's cost proposal.  Such material may be 
withheld from disclosure under section 3(a)(4) prior to the date the contract with Warner 
Whitney is in effect.  Open Records Decision No. 184 (1978).  You do not suggest that 
information contained in section 8 may be withheld under section 3(a)(10) after the 
contract is in effect, and, in our opinion, it is not excepted thereunder.

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
Rick Gilpin
Jim Moellinger