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Office of the Attorney General - State of Texas John Cornyn |
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May 22, 2002 Ms. Stephanie Bergeron
OR2002-2753 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# 163264. The Texas Natural Resource Conservation Commission (the "TNRCC") received a request for information from its files on two facilities in Jefferson County, Texas: the Ameripol Synpol Corporation plant in Port Neches and the Atofina Petrochemical Refinery in Port Arthur. You state that some responsive information has been provided to the requestor. You claim that the remaining requested information may be excepted from disclosure under section 382.041(a) of the Health and Safety Code, and you claim that release of the information may implicate the proprietary interests of a third party under section 552.110 of the Government Code, although you take no position as to whether the information is so excepted. You state, and provide documentation showing, that you notified Ameripol Synpol Corporation ("ASC") and Atofina Petrochemicals, Inc. ("Atofina") of the request and of their right to submit arguments to this office as to why the information should not be released. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (determining that statutory predecessor to § 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 note that subsequent to your request for a decision from this office, you received the requestor's letter of April 19, 2002 withdrawing her request for TNRCC's files pertaining to Atofina, a representative sample of which you submitted with your request as Attachment D2. Based on your representations and our review of the requestor's letter, we will not further consider that portion of the request pertaining to Atofina. With respect to the request for TNRCC's files concerning ASC, we have considered the exception you raise and reviewed the submitted representative sample of information.(1) We have also considered comments submitted by ASC. Gov't Code § 552.305(d). ASC has provided comments stating that, with one exception, it does not object to the release of the requested files that you submitted as Attachment D1. ASC does, however, argue that a 1990 air permit application for the construction of a new finishing line at its Port Neches plant should be withheld from disclosure under section 552.110(b) of the Government Code. Section 552.110 protects the property interests of private parties by excepting from disclosure two types of information: (1) trade secrets, and (2) commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision. Section 552.110(b) protects "[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[.]" Gov't Code § 552.110(b). This exception to disclosure requires a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from release of the information at issue. Gov't Code § 552.110(b); see also National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974); Open Records Decision No. 661 (1999). Based on ASC's arguments and our review of the submitted information, we find that ASC has demonstrated that the release of the 1990 permit application would cause it substantial competitive harm. Therefore, TNRCC must withhold the information we have marked in Attachment D1 pursuant to section 552.110(b) of the Government Code. The remainder of the requested information pertaining to ASC 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. 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, David R. Saldivar
c: Ms. Stacy Yates
Mr. Steve Bissot
Mr. Wouter Raemdonck
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. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |