Open Records Decision No. 402
December 19, 1983

Re:  Whether audit proposals are subject to disclosure under the Open Records Act

Mr. Jerry S. McGuire
Panhandle Regional Planning Commission
P.O. Box 9257
Amarillo, Texas  79105

Dear Mr. McGuire:

	An accounting firm has asked the Panhandle Regional Planning Commission to 
furnish it with copies of proposals submitted by two other accounting firms which 
competed for a contract from the commission to perform audits for comprehensive 
employment retraining act programs.  We have been informed that the commission 
awarded the contract in question on June 23, 1983.  You have asked whether the Open 
Records Act, article 6252-17a, V.T.C.S., requires the commission to comply with this 
request.  You claim that sections 3(a)(4) and 3(a)(10) except the requested information 
from required disclosure.  These sections except, respectively:

information which, if released, would give advantage to competitors 
or bidders . . .

	. . . .

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

	Section 3(a)(4) is inapplicable.  This section may not be invoked when the 
bidding on a particular contract has been completed and the contract is in effect.  See, 
e.g., Open Records Decision Nos. 319 (1982); 184 (1978); 75 (1975).  That is the case in 
this instance.

	With regard to your section 3(a)(10) claim, this office in Open Records Decision 
No. 184 concluded that a plan of operation filed with the Department of Human 
Resources by a transportation company was public information.  The decision noted that 
the company

failed to demonstrate that it has undertaken specific and concrete 
measures to protect the confidentiality of its plan of operation.  The 
company's brief states merely that 'the information is treated 
internally as confidential and simply has not been made available to 
those outside the business.'

Similarly, in Open Records Decision No. 198 (1978), this office required the Texas 
Education Agency to disclose a technical proposal submitted by a company with which 
the agency contracted.  The decision noted that the company had been invited

to summarize its objections to disclosure, with particular reference 
to 'the six criteria developed by the Restatement of Torts for 
determining whether particular information constitutes a trade 
secret.'

The company, however, chose

to rely upon the statement of its subcontractor, which asserts, 
without elaboration, that portions of its technical proposal 'are the 
result of years of independent effort and expense.'  The 
subcontractor contends that 'substantial competitive harm' would 
result from disclosure and that 'no perceptible public interest' would 
be served thereby, but it does not refer to the extent to which the 
information is known, either to employees or to others, the ease or 
difficulty with which it might be acquired or duplicated, or to any 
prior efforts to preserve its confidentiality.  Neither does the 
subcontractor furnish more than conclusory observations about the 
value of the information or the amount of effort or money expended 
in its development.

	The factors to which this decision refers are among those used in determining 
whether information fits in the "trade secret" category.  Essentially, both of these 
decisions emphasize the obvious fact that when agencies or companies fail to provide us 
with relevant information regarding these factors, we have no basis upon which to 
conclude that the "trade secret" exception applies.  And with respect to the remainder of 
section 3(a)(10), which excepts from required disclosure "commercial or financial 
information obtained from a person and privileged or confidential by statute or judicial 
decision," we point to the following statement in Open Records Decision No. 319 (1982):

This office has in the past required a company claiming the 3(a)(10) 
exception for 'commercial and financial information' to demonstrate 
compliance with the criteria established by the Restatement of Torts 
in determining whether and in what manner particular information 
constitutes a 'trade secret.'

	We sent you a letter informing you that "no showing of efforts to keep this 
information confidential has been made to this office" and that you should inform the 
firms in question that "if they desire their audit proposals to be withheld from disclosure, 
they should make such a showing to this office immediately."  (Emphasis in original).  
We received no reply.  Subsequently, we sent a copy of the earlier letter and advised that 
"if we receive no response within ten days, [we will assume] that the companies in 
question do not intend to demonstrate to us" that they have attempted to keep the 
requested information confidential.  Again, we received no reply.

	Since we have been furnished no information which would enable us to conclude 
that the trade secrets exception is applicable in this instance, we can only conclude that 
the exception is not applicable.  Compare Open Records Decision No. 217 (1978).  
Furthermore, we have been directed to no statute or judicial decision which would 
require us to conclude that this is "commercial or financial information [which is] 
confidential by statute or judicial decision."  V.T.C.S. art. 6252-17a, §3(a)(10).  We 
therefore conclude that the requested information must be made available in its entirety.

Very truly yours,

Jim Mattox
Attorney General of Texas

Tom Green
First Assistant Attorney General

David R. Richards
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood