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Office of the Attorney General - State of Texas John Cornyn |
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May 28, 2002 Mr. Kuruvilla Oommen
OR2002-2831 Dear Mr. Oommen: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 163463. The City of Houston (the "city") received a request for copies of all information related to the electric service contract between the city and Reliant Energy ("Reliant") that was approved as Item # 55 at the city's December 12, 2001 city council meeting. The request includes, but is not limited to, the executed electric service contract and all information related to Reliant's response to the city's Request for Proposals for electric service. You inform us that the city will release the requested contract to the requestor. You assert that the remainder of the requested information may be excepted from disclosure under sections 552.101, 552.110, 552.113, 552.131, and/or 552.133 of the Government Code. Pursuant to section 552.305 you notified Reliant of the request for information and invited that entity to submit arguments to this office as to why the information at issue should not be released.(1) Reliant did not provide any arguments to this office. Therefore, we have no basis on which to conclude that the submitted information is excepted from disclosure under section 552.110. See Gov't Code § 552.110(b) (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); Open Records Decision Nos. 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990). Furthermore, although you claim that the requested information may be excepted from disclosure pursuant to sections 552.101, 552.113, 552.131, and/or 552.133 of the Government Code, you did not provide us with any independent reasons why these exceptions apply to the requested information. See Gov't Code § 552.301(e)(1)(A). Accordingly, we do not address these claims with regard to the requested information. We note, however, that the submitted information contains e-mail addresses that may be excepted from disclosure under section 552.137. Section 552.137 provides in pertinent part: (a) An 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 this chapter. (b) Confidential information described by this section that relates to a member of the public may be disclosed if the member of the public affirmatively consents to its release. Gov't Code § 552.137. Accordingly, unless the members of the public in question have affirmatively consented to their release, the city must withhold the email addresses we have marked (see red flag) pursuant to section 552.137 of the Government Code. Finally, we note that much of the information in Reliant's proposal is marked "Confidential and Proprietary." However, information that is subject to disclosure under the Public Information Act may not be withheld simply because the party submitting it anticipates or requests confidentiality. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 676-78 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Further, it is well-settled that a governmental body's promise to keep information confidential is not a basis for withholding that information from the public, unless the governmental body has specific authority to keep the information confidential. See Open Records Decision Nos. 514 at 1 (1988), 476 at 1-2 (1987), 444 at 6 (1986 ). Consequently, the submitted information must fall within an exception to disclosure in order to be withheld from the requestor. As neither you nor Reliant have established that an exception to disclosure applies to the submitted information, we have no basis for finding the information confidential. Therefore, the submitted information must be released to the requestor in its entirety, with the exception of the e-mail addresses we have marked, which must be withheld under section 552.137. 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, Michael A. Pearle
c: Ms. Casey McKinney
Mr. Raymond C. Ehmer
Footnotes 1. 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). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |