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Office of the Attorney General - State of Texas John Cornyn |
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May 8, 2001 Ms. Amanda Crawford
OR2001-1856 Dear Ms. Crawford: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 146834. The Office of the Attorney General (the "OAG") received a request for "copies of all public information relating to the application for physician joint negotiation as provided under Chapter 29, Insurance Code, by physicians from Henderson, Texas, and whose representative is Ms. Linda Davis" and "copies of any other Open Records Requests made for this same information." You state that you have released all responsive information not excepted from disclosure. You claim, however, that certain responsive information is excepted from disclosure under sections 552.101 and 552.110 of the Government Code. You indicate that the release of the submitted information may implicate the privacy or property interests of third parties and that you have made a good faith effort to notify all third parties pursuant to section 552.305 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.(1) Section 552.110 protects the property interests of private persons by excepting from disclosure two types of information: (1) trade secrets obtained from a person and privileged or confidential by statute or judicial decision and (2) 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 governmental body, or interested third party, raising this exception must provide a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from disclosure. Gov't Code § 552.110(b); see also National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). First, you seek to withhold the "Contract for Information Form for Fee Related Negotiations" (the "Form") submitted to the OAG by each physician member of the Physician Joint Negotiation Group of Hendersen, Texas (the "Group"), a representative sample of which was submitted as Exhibit B. We have considered the arguments submitted by the Group, by the individual physician members of the Group, and by several insurance companies. Based on these arguments and our review of the submitted information, we conclude that the two tables contained in the Forms submitted to the OAG by each physician member of the Group are excepted from disclosure under section 552.110(b) of the Government Code. We also conclude, however, that the first page of the Form, which we have marked, does not contain commercial or financial information or trade secret information and may not be withheld under section 552.110.(2) Next, you seek to withhold the "Blue Cross and Blue Shield of Texas, Inc. Primary Care Physician and Specialty Care Provider Point of Service Agreement" (the "Agreement") submitted to this office as Exhibit C. Blue Cross and Blue Shield of Texas ("BCBSTx") argues that it would suffer substantial competitive injury upon disclosure of the commercial and financial information contained in the Agreement. Specifically, BCBSTx argues that disclosure of the Agreement would provide its competitors with "specific information that would allow them to undercut BCBSTx in specific competitive bidding proceedings" and would give its competitors "a general roadmap of BCBSTx's contract development and negotiation procedure, which would provide the competitors invaluable benefit in future competitive situations." BCBSTx further argues that disclosure of the Agreement would allow its competitors to attack BCBSTx in future competitive bids and potentially attack its existing agreements. Based on these arguments and our review of the submitted information, we conclude that the Agreement is excepted from disclosure under section 552.110(b) of the Government Code.(3) To summarize, we conclude that: (1) the two tables contained in the Forms submitted to the OAG by each physician member of the Group are excepted from disclosure and must be withheld under section 552.110(b) of the Government Code; (2) the first page of the Form, which we have marked, does not contain trade secret information or commercial or financial information and must be released to the requestor; and (3) the Agreement is excepted from disclosure and must be withheld under section 552.110(b) of the Government Code. 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 Hadassah Schloss at 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, Karen A. Eckerle
KAE/rr Ref: ID# 146834 Encl: Marked documents cc: Mr. C. J. Francisco, III
cc: Linda Davis, MBA
cc: Brenda M. Vozza-Zeid, M.D.
cc: Yogesh G. Pai, M.D.
cc: David C. Craig, M.D.
cc: M. Joyce Starling, M.D.
cc: F. Sanford Ladage, M.D.
cc: Larry J. Laurich
cc: Khoren Hekimian
cc: C. Victor Haley
cc: William A. Zeis
cc: Stacy L. Cozad
cc: Cheryl S. Camin
cc: William C. Davidson
cc: LeeAnn Solomon Christ
cc: Gisele M. Molloy
cc: Margaret B. Jones, Esq.
cc: Kate Bowen
cc: Penny Hobbs
cc: Jennifer M. Kopps
cc: David M. Adams
cc: Russell C. Brown
cc: Roger C. Sessions, M.D.
cc: Yasser F. Zeid, M.D.
cc: Sue Ann Williams, M.D., FACOG
Footnotes 1. You state that "[a] representative sample Contract Information Form is attached as Exhibit B." We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. 2. As we resolve your request for a ruling concerning the information in Exhibit B under section 552.110(b) of the Government Code, we need not address the other claimed exceptions. 3. As we resolve your request for a ruling concerning the information in Exhibit C under section 552.110(b) of the Government Code, we need not address the other claimed exceptions. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |