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Office of the Attorney General - State of Texas John Cornyn |
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October 8, 2001 Ms. Janice Mullenix
OR2001-4531 Dear Ms. Mullenix: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 152980. The Texas Department of Transportation (the "department") received a request for five categories of information pertaining to a certain department highway project. You inform us that the department will provide the requestor with most of the requested information. We assume that, with the exception of the information submitted for our review, the department has released all information responsive to the request. If not, the department must do so at this time. See Gov't Code §§ 552.301, .302. You claim that the submitted prequalifying information pertaining to Ryan-O Excavating, Inc. ("Ryan-O") is excepted from disclosure under sections 552.104 and 552.110 of the Government Code. You have notified Ryan-O of the request pursuant to section 552.305 of the Government Code. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released). Ms. Calley D. Callahan, an attorney representing Ryan-O, asserts that the prequalification information is excepted from disclosure under sections 552.101, 552.104, and 552.110 of the Government Code. We have considered the exceptions the department and Ryan-O claim and reviewed the submitted information. Section 552.104 excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." The purpose of section 552.104 is to protect a governmental body's interests in competitive bidding situations. See Open Records Decision No. 592 (1991). Moreover, section 552.104 requires a showing of some actual or specific harm in a particular competitive situation; a general allegation that a competitor will gain an unfair advantage will not suffice. Open Records Decision No. 541 at 4 (1990). Section 552.104 does not except information relating to competitive bidding situations once a contract has been awarded. Open Records Decision Nos. 306 (1982), 184 (1978). You indicate that "to maximize efficiency and save time and money, [the department] has instituted a 'pre-qualification' procedure that requires contractors to submit certain financial information in advance of any bid." You assert that the release of the information would impair the department's "ability to compete for contractors with entities that do not have to release private financial information" and would, in effect, reduce competition on competitive bids. Upon careful review of the arguments submitted by the department, we believe that the department has demonstrated that public release of the information at issue would cause specific harm to the department's interests in particular competitive bidding situations. Accordingly, we believe you have adequately demonstrated the applicability of section 552.104 to the submitted information. Therefore, the department may withhold the submitted information from required public disclosure under section 552.104.(1) 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 Dept. 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, J. Steven Bohl
c: Mr. W.C. Kolinek
Ms. Calley D. Callahan
Footnotes 1. Because section 552.104 is dispositive in this case, we do not consider the department's additional arguments or those of Ryan-O. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |