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Office of the Attorney General - State of Texas John Cornyn |
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December 19, 2000 Ms. Michelle R. Herrmann
OR2000-4755 Dear Ms. Herrmann: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 142408. The Pasadena Independent School District (the "district"), which you represent, received a written request for the following information:
You state that the district has released to the requestor the results of the wage survey, a spreadsheet showing the data used to calculate the survey results (without any identification of the contractors), a copy of the list of contractors who were invited to participate in the survey, and a narrative explaining the methodology used to conduct the survey and calculate the results. You contend, however, that individual survey forms submitted by the participants and information created during a telephone survey, which reveal the names of the contractors and the hourly wages they pay their laborers, are excepted from public disclosure pursuant to sections 552.101, 552.104, and 552.110 of the Government Code. We initially note that none of the information at issue is confidential under the Public Information Act simply because the party submitting the information anticipates or requests that it be kept confidential. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976), cert. denied 430 U.S. 931 (1977). In other words, a governmental body cannot, through a contract or agreement, overrule or repeal provisions of the Public Information Act. Attorney General Opinion JM-672 (1987). Consequently, unless the requested information falls within one of the act's exceptions to disclosure, it must be released, notwithstanding any agreement between the district and the interested third parties specifying otherwise. We first address your arguments under section 552.101 of the Government Code, which excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." (Emphasis added.) Citing National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974) as authority, you contend that the information at issue is confidential because the release of the information would adversely affect the district's ability to obtain similar information in the future. However, the Third Court of Appeals has held that National Parks was not a judicial decision within the meaning of the former section 552.110. Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766 (Tex. App.-Austin 1999, pet. filed). Consequently, in accordance with the Birnbaum decision, this office no longer uses the National Parks standard for excepting information from required public disclosure. Accordingly, none of the information at issue may be withheld pursuant to National Parks. We next address your arguments under section 552.104 of the Government Code. Section 552.104 protects from required public disclosure "information that, if released, would give advantage to a competitor or bidder." Section 552.104 is generally invoked to except information submitted to a governmental body as part of a bid or similar proposal. See, e.g., Open Records Decision No. 463 (1987). Governmental bodies may withhold this type of information and other related internal documents while the governmental officials are in the process of evaluating the proposals and may ask the competitors to clarify their bids. Cf. Open Records Decision No. 170 (1977). In this instance, however, the information at issue has not been submitted to the district in connection with a request for proposals. Although you state that the district has initiated a bond program for the construction and renovation of several new and existing schools, the district has not yet issued a Request For Proposals for that program. The mere fact that some of the respondents to the wage survey may also submit bids to the district sometime in the future does not constitute grounds for withholding the information at issue at this time under section 552.104. Section 552.104 protects information from public disclosure only if the governmental body demonstrates potential harm to its interests in a particular competitive situation. A general allegation of a remote possibility of harm is not sufficient to invoke section 552.104. See Open Records Decision Nos. 593 at 2 (1991), 541 at 4 (1990), 463 (1987). Accordingly, the district may not withhold any of the information at issue pursuant to section 552.104. Although you also contend that the information at issue is excepted from public disclosure pursuant to section 552.110 of the Government Code, you have requested a decision from this office regarding that exception pursuant to section 552.305 of the Government Code, which authorizes a governmental body to rely on the arguments of third parties with a privacy or property interest in the information to make arguments for non-disclosure. In accordance with the requirements of section 552.305(d), you have notified the affected third parties whose information has been requested. Of the fifty-four businesses that provided wage information to the district in connection with its wage survey, only eleven of those businesses responded to your section 552.305 notice. Because this office has no grounds on which to conclude that the information pertaining to the remaining forty-three businesses is excepted from public disclosure, we conclude that the requested information relating to those businesses must be released to the requestor in its entirety. However, this office received arguments for non-disclosure from the following businesses: Southern Tile & Terrazzo Company, Inc. ("Southern Tile"), Pieper Consolidated Services and Pieper Houston Electric, Inc. ("Pieper"), Gage Roofing & Constructors, Inc. ("Gage"), Marker Paving, Inc. ("Marker"), Allied Fire Protection, Inc. ("Allied"), KenMor Electric Company, LP ("KenMor"), Slack & Company Contracting, Inc. ("Slack"), Gulf Star Roofing and Sheetmetal ("Gulf Star"), King & Arthur Mechanical ("King & Arthur"), J.M. Reed Plumbing Company ("Reed"), and Tellepsen Builders, L.P. ("Tellepsen"). Each of these companies contend that their respective wage information is excepted from public disclosure pursuant to, among other exceptions, section 552.110(b) of the Government Code. Section 552.110(b) excepts from public disclosure "commercial or financial information" for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained. The commercial or financial branch of section 552.110 requires the business enterprise whose information is at issue to make a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would result from disclosure. See Open Records Decision No. 661 (1999). After reviewing the section 552.110 arguments and the records at issue, we conclude that the following businesses have demonstrated that the release of their respective wage information would result in substantial competitive harm and therefore must be withheld from the public: Pieper, Gage, Marker, Allied, Slack, Gulf Star, King & Arthur, Reed, and Tellepsen. However, Southern Tile and KenMor have not provided this office with specific evidence that disclosure would cause substantial competitive harm as required under section 552.110(b). Consequently, the district must release to the requestor these two companies' wage information as well as the wage information of those forty-three businesses that did not respond to your section 552.305 notice. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, Jennifer Bialek
JHB/RWP/seg Ref: ID# 142408 Encl. Marked documents cc: Mr. Jim Hart
Mr. Les Craft
Mr. Michael Moore
Mr. Donald Walton
Ms. Jodie McAdams
Mr. Chris Mailing
Mr. Eric van Uchelen
Mr. Craig Bundren
Mr. David A. McAllen
Mr. Robert Bloomer
Mr. Art Economos
Mr. Lloyd Cryer
Mr. Karl F. Doerner, Sr.
Mr. Charlie Evans
Mr. John Hays
Mr. Johnny Hicks
Mr. Roger Gage
Mr. LeRoy Stavinoha
Mr. David Salge
Mr. Damon Gowan
Mr. W. A. Gregory
Mr. David Parmer
Mr. William E. Arendt
Mr. Kenneth J. Gurry
Mr. Charles R. Head, Jr.
Mr. Robert J. Herring
Mr. Charles Reich
Mr. Mike Jarrar
Mr. Joe Bitner
Mr. David D. Van Vleet
Mr. Donald Stewart
Mr. Stephen Arthur
Mr. Marvin Boeker
Mr. Jack Marshall
Mr. Harry Keller
Mr. John K. McNabb
Mr. George Tillota
Mr. Ronnie Gonzalez
Mr. G.W. "Bud" Walters
Mr. Tom A. Lancaster
Mr. Kem Casey
Mr. Roland Cartier
Mr. J.M. Reed
Mr. Gary Rosenberger
Mr. John Ryder
Mr. Vince Nweke
Mr. David Felgere
Mr. Michael Maraldo
Mr. Carlos M. Chavez
Mr. Rod Bowers
Mr. David R. Brecht
Mr. James Stephens
Mr. John Kauffman
Mr. Gary D. Williams
Mr. J. Todd Spruiell
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |