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Office of the Attorney General - State of Texas John Cornyn |
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December 6, 2001 Ms. Stephanie Bergeron
OR2001-5696 Dear Ms. Bergeron: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 155165. The Texas Natural Resource Conservation Commission (the "commission") received two requests for various information pertaining to Owens-Corning Fiberglass Corporation ("Owens") facilities located in Amarillo and Waxahachie, Texas. You state that you are making available to the requestor those documents that you believe to be responsive to the request and not excepted from disclosure. You claim, however, that the submitted information may be excepted from disclosure pursuant to sections 552.101 and 552.110 of the Government Code. You make no arguments and take no position as to whether any portion of the submitted information is excepted from disclosure. You state, and provide documentation showing, that you notified Owens of the request for information. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); see also 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). We have considered the exceptions you claim and have reviewed the submitted representative sample documents.(1) Owens responded to the commission's section 552.305 notice by claiming that the submitted information is excepted from disclosure pursuant to sections 552.101, 552.110, and 552.125 of the Government Code. Owens claims that the submitted information is excepted from disclosure pursuant to section 552.101 of the Government Code in conjunction with section 382.041 of the Health and Safety Code.(2) Section 382.041(a) provides in part, with exceptions that do not appear to apply here, that "a member, employee, or agent of the commission may not disclose information submitted to the commission relating to secret processes or methods of manufacture or production that is identified as confidential when submitted." Health & Safety Code § 382.041(a). In Open Records Decision No. 652 (1997), this office concluded that section 382.041 of the Health and Safety Code protects information submitted to the commission, but only if a prima facie case is established that demonstrates that the information is a "trade secret" under the definition set forth in the Restatement of Torts and if the information was identified as confidential by the submitting party when it was submitted to the commission. See Open Records Decision No. 652 (1997). Thus, we will address Owens' argument with respect to section 382.041(a) of the Health and Safety Code in conjunction with its trade secret claim under section 552.110(a) of the Government Code. We will also address Owens' claims that the submitted information is excepted from disclosure under section 552.110(b) of the Government Code. Section 552.110(a) of the Government Code protects trade secrets of private parties. The Texas Supreme Court has adopted the definition of "trade secret" from the Restatement of Torts, section 757, which holds a "trade secret" to be: 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 a single or ephemeral event 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); see Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex.), cert. denied, 358 U.S. 898 (1958). If a governmental body takes no position with regard to the application of the "trade secrets" branch of section 552.110 to requested information, we 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 one submits an argument that rebuts the claim as a matter of law.(3) See Open Records Decision No. 552 at 5 (1990). Section 552.110(b) excepts from disclosure "[c]ommercial 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." An entity will not meet its burden under section 552.110(b) by a mere conclusory assertion of a possibility of commercial harm. Cf. National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). The governmental body or interested third party raising section 552.110(b) must provide a specific factual or evidentiary showing that substantial competitive injury would likely result from disclosure of the requested information. See Open Records Decision No. 639 at 4 (1996) (to prevent disclosure of commercial or financial information, party must show by specific factual or evidentiary material, not conclusory or generalized allegations, that it actually faces competition and that substantial competitive injury would likely result from disclosure). Owens contends that the submitted information is excepted from disclosure pursuant to section 552.110(a) because the information meets the six criteria for determining whether particular information constitutes a trade secret. Based on Owens' arguments and our review of the submitted information, we conclude that some portions of the information constitute Owens' trade secret information. Accordingly, the commission must withhold the information that we have marked from disclosure pursuant to section 552.110(a) of the Government Code. However, we conclude that the remaining portions of the submitted information do not constitute either Owens' trade secret information or commercial or financial information for which Owens' has demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to Owens. Accordingly, the remaining portions of the submitted information must be released to the requestor. 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 Texas Building and Procurement 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, Ronald J. Bounds
RJB/sdk Ref: ID# 155165 Enc. Marked documents c: Ms. Teresa Barrera
Footnotes 1. 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. Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Section 552.101 encompasses information protected by other statutes. 3. 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 other 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 |