|
Office of the Attorney General - State of Texas John Cornyn |
|
April 18, 2002 Mr. James L. Hall
OR2002-1974 Dear Mr. Hall: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your requests were assigned ID#s 161460 and 161574. We have combined these files and will consider the issues presented in this single ruling assigned ID# 161460. The Texas Department of Criminal Justice ("TDCJ") received requests for certain program proposals, contracts, and budgets. You contend that portions of the requested information are excepted from disclosure under section 552.137 of the Government Code. You also indicate that the requests may implicate the proprietary rights of two third parties--Wackenhut Corrections Corporation ("Wackenhut") and Gateway Foundation ("Gateway"). Consequently, you notified Wackenhut and Gateway 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); 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 all of the submitted arguments and reviewed the submitted information. We begin by addressing Wackenhut's argument that some of the information in its proposal is excepted from required public disclosure under section 552.110 of the Government Code. 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).(1) 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). Wackenhut argues that its pricing information is protected under both prongs of section 552.110. Specifically, pursuant to section 552.110(b), Wackenhut contends that the release of their pricing information would reveal their pricing strategy and harm their ability to bid and rebid on contracts in the future. According to Wackenhut, release of its direct and indirect costs when coupled with the number of inmate days provided in the proposal would allow competitors to "unlock" its pricing strategy, thus giving its competitors an unfair advantage in future competitive bidding situations. Based on Wackenhut's arguments, we agree that the submitted information from Wackenhut's proposal is protected from disclosure under section 552.110(b) of the Government Code and must be withheld from disclosure. Gateway likewise contends that some of the information in its proposal is confidential and proprietary and should not be released. Gateway indicates that several portions of its proposal are unique to Gateway and have given it an advantage in the bidding process. However, Gateway has not made a prima facie showing that any portion of its proposal constitutes a trade secret nor has it made a specific factual or evidentiary showing that substantial competitive injury would result from disclosure of any portion of its proposal. Therefore, we find that Gateway has not adequately demonstrated that any portion of its proposal is excepted from disclosure. Nevertheless, you contend that portions of requested information are excepted from disclosure under section 552.137 of the Government Code. Section 552.137 provides that "[a]n e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under [the Public Information Act]."(2) Therefore, unless the relevant individuals have affirmatively consented to the release of their e-mail addresses, TDCJ must withhold the e-mail addresses in Gateway's information that we have marked under section 552.137.(3) In summary, TDCJ must withhold the submitted portions of Wackenhut's proposal pursuant to section 552.110(b) of the Government Code. TDCJ must also withhold the marked e-mail addresses contained in Gateway's proposal information under section 552.137 of the Government Code, unless the relevant individuals have consented to the release of their e-mail addresses. However, TDCJ must release the remainder of the submitted information from Gateway's proposal. 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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 Assistant Attorney General
c: Mr. Robert M. Balboni
Mr. Roy I. Ross
Mr. Louis V. Carrillo
Mr. John A. Pugliese
Footnotes 1. 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). 2. The identical exception has been added as section 552.136 of the Government Code. 3. You also indicate that Wackenhut's proposal contains an e-mail address excepted from disclosure under section 552.137. However, we are unable to locate any e-mail addresses in the Wackenhut materials submitted to this office. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |