December 21, 2001

Mr. John Steiner
Division Chief
Law Department
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546

OR2001-6076

Dear Mr. Steiner:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 156499.

The City of Austin (the "city") received a request for 12 types of information relating to water utility customers.⁽¹⁾ You state that the city will release information that is responsive to item nos. 10 and 12 of the request. You claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.104, 552.130, and 552.133 of the Government Code. We have considered the exceptions you raise and have reviewed the representative sample of responsive information you submitted.⁽²⁾

Section 552.104 of the Government Code excepts from required public disclosure "information that, if released, would give advantage to a competitor or bidder." This exception protects a governmental body's interests in connection with competitive bidding and in certain other competitive situations.⁽³⁾ See Open Records Decision No. 593 (1991) (construing statutory predecessor). This office has held that a governmental body may seek protection as a competitor in the marketplace under section 552.104 and avail itself of the "competitive advantage" aspect of this exception if it can satisfy two criteria. First, the governmental body must demonstrate that it has specific marketplace interests. Id. at 3. Second, the governmental body must demonstrate a specific threat of actual or potential harm to its interests in a particular competitive situation. Id. at 5. Thus, the question of whether the release of particular information will harm a governmental body's legitimate interests as a competitor in a marketplace depends on the sufficiency of the governmental body's demonstration of the prospect of specific harm to its marketplace interests in a particular competitive situation. Id. at 10. A general allegation of a remote possibility of harm is not sufficient. See Open Records Decision No. 514 at 2 (1988).

You refer to a letter dated December 15, 1999, clarifying Open Records Letter No. 99-3249 (1999), in which this office acknowledged that the city competes with private energy services companies in providing energy products and services. In this instance, however, the city has not shown that the requested water utility customer information relates to such an energy product or service. Moreover, the city does not identify any specific marketplace interests that it claims are implicated by this request for water utility customer information. Additionally, you have not shown how or why the release of water utility customer information would harm the city's interests in any specific competitive situation. Thus, the city has not demonstrated that the requested information is excepted from disclosure under section 552.104.

Section 552.133 of the Government Code is applicable to information held by a public power utility that is related to a competitive matter.⁽⁴⁾ See Gov't Code § 552.133(b). Section 552.133 defines "competitive matter" as one that the public power utility governing body in good faith determines by vote to be related to the public power utility's competitive activity. Id. § 552.133(a)(3). The governing body must also determine that the release of the information would give an advantage to competitors or prospective competitors. Id. Section 552.133(a)(3) lists 13 categories of information that may not be deemed to be competitive matters. The attorney general may conclude that section 552.133 is inapplicable to the information at issue only if, based on the information provided, the attorney general determines that the public power utility governing body has not acted in good faith in determining that the issue, matter, or activity is a competitive matter or that the information requested is not reasonably related to a competitive matter. Id. § 552.133(c).

You inform this office that Austin Energy is a public power utility, the governing body of which is the Austin City Council, under section 552.133(a). You further inform us that the city council has determined by resolution and in good faith that "all information regarding retail customers" constitutes a competitive matter under section 552.133(a)(3). You state that "all information regarding retail customers" includes "information that is currently part of the customer master file which constitutes the Austin Energy Customer Information System." You advise us that information relating to water utility customers is held in the Customer Information System. You state that for administrative and billing purposes, all utility customer information, including electric, water and wastewater, and solid waste, is intertwined in one database system, resulting in one utility bill.

You acknowledge, however, that the present request is for information that relates to water utility customers. Section 552.133 defines "public power utility" as an "entity providing electric or gas utility services[.]" Gov't Code § 552.133(a)(1) (emphasis added). You have not shown, nor does this office believe, that the purpose of section 552.133 is to protect water utility customer information. Furthermore, you have not demonstrated that responsive information pertaining to water utility customers is inseparable from other utility customer information that the city holds or controls. See also Gov't Code § 552.231 (prescribing procedure for responding to requests that require programming or manipulation of data); Open Records Decision No. 661 at 6-8 (1999) (discussion of Gov't Code § 552.231). Therefore, having considered your arguments, we conclude that the requested information is not excepted from disclosure under section 552.133 of the Government Code.

You also raise section 552.101 of the Government Code. Section 552.101 excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception protects information that another statute makes confidential. Section 182.052 of the Utilities Code provides in part:

(a) Except as provided by Section 182.054, a government-operated utility may not disclose personal information in a customer's account record if the customer requests that the government-operated utility keep the information confidential.

Util. Code § 182.052(a).⁽⁵⁾ "Personal information" under section 182.052(a) means an individual's address, telephone number, or social security number. See id. § 182.051(4). Furthermore, section 182.052 is applicable only to an individual and does not protect information relating to a corporation, partnership, or other business entity. See Open Records Decision No. 625 at 4-5 (1994) (construing statutory predecessor). The city must withhold a utility customer's address, telephone number, and social security number under section 182.052 if that customer requested confidentiality prior to the city's receipt of this request for information. See id. at 5-8. Section 552.101 of the Government Code excepts from disclosure any responsive information relating to water utility customers that is made confidential under section 182.052 of the Utilities Code.

Section 552.130 of the Government Code excepts from disclosure "a motor vehicle operator's or driver's license or permit issued by an agency of this state[.]" Gov't Code § 552.130(a)(1). The city must withhold Texas driver's license numbers in accordance with section 552.130.

In summary, any information relating to water utility customers that is confidential under section 182.052 of the Utilities Code must be withheld under section 552.101 of the Government Code. The city must also withhold Texas driver's license numbers in accordance with section 552.130 of the Government Code. The remaining requested information must be released.

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 Pub. 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,

James W. Morris, III
Assistant Attorney General
Open Records Division
JWM/sdk
Ref: ID# 156499
Enc: Submitted documents

c: Mr. Donald R. Coe
Coe Information Publishers, Inc.
P.O. Box 5087
Austin, Texas 78763-5087
(w/o enclosures)

Footnotes

1. The 12 categories of requested information include utility service connections for all water utility customer accounts; utility service disconnections for all water utility customer accounts from January 1, 2001; customer account numbers and premise account numbers for each utility account; customer name or vacant status on all utility accounts; customer telephone numbers where available for each account; complete service address data for each account including connect/disconnect dates; mailing or final billing address data for each account; social security and driver's license numbers for each account where available; data fields identifying commercial and residential accounts, individual water accounts, and requests for privacy; and record layout showing field descriptions of requested data.

2. This letter ruling assumes that the submitted representative sample of information is truly representative of the responsive information as a whole. This ruling neither reaches nor authorizes the city to withhold any responsive information that is substantially different from the submitted information. See Gov't Code § 552.301(e)(1)(D): Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).

3. As you do not indicate that the information in question relates to a competitive bidding situation, we do not consider this aspect of section 552.104.

4. The Seventy-seventh Legislature renumbered former section 552.131, "Exception: Public Power Utility Competitive Matters," as section 552.133. The revision was non-substantive. See Act of May 22, 2001, 77^th Leg., R.S., H.B. 2812, § 21.001(52) (to be codified at Gov't Code § 552.133).

5. Formerly sections 2 and 4 of article 1446h, Vernon's Texas Civil Statutes. See Act of May 8, 1997, 75^th Leg., R.S., ch. 166, § 1, 1997 Tex. Gen. Laws 713, 991.
 

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