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Office of the Attorney General - State of Texas John Cornyn |
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May 10, 2002 Ms. Ann-Marie Sheely
OR2002-2489 Dear Ms. Sheely: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 162929. The Travis County Purchasing Office (the "purchasing office") received a request for copies of all available information relating to RFP # P010106, Interactive Voice Response System, with the exception of the winning bid proposal submitted by the requestor's company. You state that you will be releasing some responsive information to the requestor, to include the requested scoring and pricing information. Although you do not take a position with respect to the release of the remaining requested information, you claim that the information may be excepted from disclosure pursuant to section 552.110 of the Government Code. Pursuant to section 552.305(d) of the Government Code, the purchasing office notified three interested third parties of the request and of their right to submit arguments to this office as to why the remaining requested information should not be released, namely VYSYS, EPOS Corporation ("EPOS"), and Centurion, Inc. ("Centurion"). See Gov't Code § 552.305(d); 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 to disclosure under Public Information Act in certain circumstances). We have considered the exception you claim and have reviewed the submitted information. We note at the outset that this office has previously addressed VYSYS' and EPOS' bid proposals in Open Records Letter No. 2002-2135 (2002). Specifically, we ruled that, with the exception of certain e-mail addresses that were excepted from disclosure under section 552.137 of the Government Code, both of these proposals must be released to the requestor. Accordingly, with respect to VYSYS' and EPOS' bid proposals, the purchasing office should rely on our decision in Open Records Letter No. 2002-2135 (2002). See Gov't Code § 552.301(f); see also Open Records Decision No. 673 (2001). Next, we note that an interested third party is allowed ten business days after the date of its receipt of the governmental body's notice under section 552.305(d) to submit its reasons, if any, as to why requested information relating to that party should be withheld from disclosure. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, we have not received arguments from Centurion explaining why any portion of its bid proposal should not be released to the requestor. Therefore, we have no basis to conclude that the release of this information would implicate Centurion's proprietary interests under section 552.110. See Open Records Decision Nos. 661 at 5-6 (1999) (stating that business enterprise that claims exception for commercial or financial information under Gov't Code § 552.110(b) must show by specific factual evidence that release of requested information would cause that party substantial competitive harm), 552 at 5 (1990) (stating that if governmental body takes no position, attorney general will grant exception to disclosure under statutory predecessor to Gov't Code § 552.110(a) if third party makes prima facie case that information qualifies as trade secret under section 757 of Restatement of Torts, and no argument is presented that rebuts claim as matter of law). Accordingly, the purchasing office may not withhold any portion of Centurion's bid proposal pursuant to section 552.110 of the Government Code. Consequently, the purchasing office must release the entirety of Centurion's bid proposal to the requestor. In summary, the purchasing office should rely on our decision in Open Records Letter No. 2002-2135 (2002) with respect to VYSYS' and EPOS' bid proposals. The purchasing office must release the entirety of Centurion's bid proposal 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. 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, Ronald J. Bounds
RJB/seg Ref: ID# 162929 Enc. Submitted documents cc: Ms. Eriika Amis
Mr. Michael E. Bunton
Ms. Ashley E. Boos
Mr. Fred R. Stone
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |