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Office of the Attorney General - State of Texas John Cornyn |
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June 7, 2001 Mr. David Anderson
OR2001-2387 Dear Mr. Anderson: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 148122. The Texas Education Agency (the "agency") received two requests for "a copy of all written suggestions, objections and/or critique of the proposed new Technical Standards for Driving Safety Courses Taught by an Alternative Delivery Method submitted by anyone other than an employee of [the agency]."(1) Although you do not raise an exception to disclosure on behalf of the agency, you advise this office that the requested information may involve the proprietary or property interests of Square Peg Interactive ("Square Peg"), All-Pro Defensive Driving Course, ("All-Pro") and Driver Training Associates, Inc. ("DTA"). You have submitted copies of letters notifying Square Peg, All-Pro, and DTA about the request as required by section 552.305(d).(2) We have reviewed the submitted information and considered the comments submitted by a third party who made a similar request to the agency. See Gov't Code § 552.304 (providing for submission of public comments).
You have submitted a letter from All-Pro in which it claims that its information is privileged and requests that it remain confidential. However, information that is subject to disclosure under the Public Information Act (the "Act") may not be withheld simply because the party submitting it anticipates or requests confidentiality. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 676-78 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Further, it is well-settled that a governmental body's promise to keep information confidential is not a basis for withholding that information from the public, unless the governmental body has specific authority to keep the information confidential. See Open Records Decision Nos. 514 at 1 (1988), 476 at 1-2 (1987, 444 at 6 (1986 ). Consequently, under the Act, information must fall within an exception to disclosure in order to be withheld from disclosure. Square Peg and DTA have also submitted letters to the agency claiming that portions of their information are trade secrets and requesting that the information not be released. DTA has also submitted a letter to this office. Section 552.110(a) protects the property interests of private parties by excepting from disclosure trade secrets obtained from a person and privileged or confidential by statute or judicial decision. See Gov't Code § 552.110(a). A "trade secret" may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives [one] an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. It differs from other secret information in a business in that it is not simply information as to single or ephemeral events in the conduct of the business, as for example the amount or other terms of a secret bid for a contract or the salary of certain employees. . . . A trade secret is a process or device for continuous use in the operation of the business. Generally it relates to the production of goods, as for example, a machine or formula for the production of an article. It may, however, relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management. Restatement of Torts § 757 cmt. b (1939); see also Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex. 1958); Open Records Decision Nos. 255 (1980), 232 (1979), 217 (1978). There are six factors to be assessed in determining whether information qualifies as a trade secret: (1) the extent to which the information is known outside of [the company's] business; (2) the extent to which it is known by employees and others involved in [the company's] business; (3) the extent of measures taken by [the company] to guard the secrecy of the information; (4) the value of the information to [the company] and to [its] competitors; (5) the amount of effort or money expended by [the company] in developing this information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Restatement of Torts § 757 cmt. b (1939); see also Open Records Decision No. 232 (1979). This office must accept a claim that information subject to the Act is excepted as a trade secret if a prima facie case for exemption is made and no argument is submitted that rebuts the claim as a matter of law. Open Records Decision No. 552 (1990). However, we cannot conclude that section 552.110(a) is applicable unless is has been shown that the information meets the definition of a trade secret and the necessary factors have been demonstrated to establish a trade secret claim. Open Records Decision No. 402 (1983). All-Pro only claims that the information at issue is privileged and Square Peg merely claims that its information at issue contains trade secrets. Thus, All-Pro and Square Peg have failed to demonstrate any of the factors necessary to establish a trade secret claim. Therefore, we conclude that Square Peg and All-Pro have not demonstrated that section 552.110(a) is applicable to their information. Although DTA does discuss the trade secret factors, we do not believe that the information at issue contains the type of information, such as formulas, patterns, or devices, that meet the definition of a trade secret. Accordingly, we conclude that DTA's information may not be withheld under section 552.110(a) of the Government Code. We also understand DTA to argue that its information is excepted under section 552.110(b) because the release of the information might impair the government's ability to obtain necessary information in the future. This argument, expressing the commercial interests of the agency, evidently relies on the test announced in National Parks pertaining to the applicability of the section 552(b)(4) exemption of the federal Freedom of Information Act to third party information held by a federal entity. See National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Although this office at one time applied this aspect of the National Parks test to the statutory predecessor to section 552.110, that standard was overturned by the Third Circuit Court of Appeals when it held that National Parks was not a judicial decision within the meaning of former section 552.110. See Birnbaum v. Alliance of American Insurers, 994 S.W.2d 766 (Tex. App. - Austin 1999, pet. denied). Section 552.110(b) now expressly requires a demonstration, based on specific factual evidence, that disclosure would cause substantial competitive harm to the person from whom the information was obtained. See also Open Records Decision No. 661 at 5-6 (1999). As there has been no such showing here, we conclude that DTA's information may not be withheld under section 552.110(b). Because Square Peg, All-Pro, and DTA have failed to demonstrate that the information at issue is excepted from required public disclosure, we need not address the third party's arguments. The agency must release the requested information. 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, Jennifer H. Bialek
JHB/sdk Ref: ID# 148122 Encl: Submitted documents cc: Mr. Phil H. Ward
Mr. Craig Buck
Mr. Roberto J. Reyna
Mr. Randy Burton
Mr. C. Brian Cassidy
Mr. Terrence Rendall
Footnotes 1. In this ruling, we are only addressing the first paragraph of Craig Buck's request. We will address the security documents and third party databases in a ruling that will be issued in response to the agency's request for a decision that was assigned ID# 149527. 2. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Public Information Act in certain circumstances). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |