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Office of the Attorney General - State of Texas John Cornyn |
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September 24, 2001 Mr. W. Lane Lanford
OR2001-4276 Dear Mr. Lanford: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 152309. The Public Utility Commission of Texas (the "commission") received a request for "(1) [a]ll signed contracts including term sheets between the PUC and Retail Electric Providers to provide POLR services," and "(2) [c]opies of all bids submitted by REP's to provide POLR services." You indicate that you have provided the requestor with the signed contracts and the portions of the bids that were not marked confidential. However, you indicate that the release of the remainder of the bid information may implicate the proprietary rights of two bidders--TXU Energy Services ("TXU") and Enron Energy Services ("Enron"). Accordingly, you notified TXU and Enron of the request for their information pursuant to section 552.305 of the Government Code. In turn, we have received correspondence from both TXU and Enron. We have considered all of the submitted arguments and reviewed the submitted information.(1) In its correspondence with this office, TXU indicates that it does not object to the release of its information. Because neither you nor TXU argues that its information should be withheld and the information does not appear confidential on its face, we find that TXU's information is not excepted from disclosure and must be released. On the other hand, Enron contends that some of the information in its bids is excepted from disclosure under section 552.110(a) and (b). 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. With respect to the trade secret prong of section 552.110, we note that the Texas Supreme Court has adopted the definition of trade secret from section 757 of the Restatement of Torts. Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex.), cert. denied, 358 U.S. 898 (1958); see also Open Records Decision No. 552 at 2 (1990). Section 757 provides that a trade secret is any formula, pattern, device or compilation of information which is used in one's business, and which gives him 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 . . . . A trade secret is a process or device for continuous use in the operation of the business. . . . [It may] 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). In determining whether particular information constitutes a trade secret, this office considers the Restatement's definition of trade secret as well as the Restatement's list of six trade secret factors. Restatement of Torts § 757 cmt. b (1939).(2) This office has held that if a governmental body takes no position with regard to the application of the trade secret branch of section 552.110 to requested information, we must accept a private person's claim for exception as valid under that branch if that person establishes a prima facie case for exception and no argument is submitted that rebuts the claim as a matter of law. Open Records Decision No. 552 at 5-6 (1990). With respect to the commercial and financial information prong of section 552.110, we note that the exception requires a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would result from disclosure. Gov't Code § 552.110(b); see Open Records Decision No. 661 (1999). Enron contends that Attachments B, C, and D to its proposals consist of both trade secret information and commercial and financial information excepted under section 552.110. In support of its arguments, Enron has submitted an affidavit from its managing director in which he applies each of the six trade secret criteria to the information in question. The managing director likewise explains that the release of Attachments B, C, and D would place it at a competitive disadvantage "in future bids for electric services because [its] competitors would know [its] strategy for bidding and carrying out the project." Based on Enron's arguments and our review of Enron's proposals, we agree that Attachments B, C, and D of the proposals are excepted from public disclosure under section 552.110(a) and (b). Thus, you must withhold Attachments B, C, and D of Enron's proposals, but release the remainder of the responsive 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); Tex. Dep't 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, Nathan E. Bowden
c: Mr. Randall Chapman
Ms. Carolyn E. Shellman
Ms. Kimberly A. Frost
Footnotes 1. We note that while the commission initially raised sections 552.103 and 552.104 of the Government Code as possible exceptions to the public disclosure of the requested information, it did not subsequently provide written comments explaining why these exceptions apply to the requested information. Consequently, we do not address whether section 552.103 or section 552.104 excepts the requested information from disclosure. See Gov't Code §§ 552.301, .302; Open Records Decision Nos. 592 (1991), 551 (1990). We also note that you indicate that you have submitted a representative sample of TXU's bids. We assume that the "representative sample" of TXU's information submitted to this office is truly representative of TXU's bids 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. The six factors that the Restatement gives as indicia of whether information constitutes a trade secret are: (1) the extent to which the information is known outside of [the company]; (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 [its] competitors; (5) the amount of effort or money expended by [the company] in developing the information; (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 Nos. 319 at 2 (1982), 306 at 2 (1982), 255 at 2 (1980). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |