August 22, 2002

Mr. Ross T. Foster, P.C.
9001 Airport Freeway, Suite 675
Fort Wort, Texas 76180

OR2002-4692

Dear Mr. Foster:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 167448.

The City of Colleyville (the "city") received a request for Trinity Waste Services' ("Trinity") proposal for solid waste disposal service. You claim that portions of the proposal are excepted from disclosure under sections 552.101 and 552.104 of the Government Code. You also state that you are withholding the requested information because the proprietary interests of a third party are involved. You state that you have notified Trinity, a third party whose proprietary interests have been implicated by the request, of the request for information. 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 the arguments submitted by the city and by Trinity and have reviewed the submitted information.

The city asserts that pages 00024-00039 and 00171-00174 of the requested information are excepted from disclosure based on section 552.104 of the Government Code. Section 552.104 states that information is excepted from required public disclosure if release of the information would give advantage to a competitor or bidder. The purpose of this exception is to protect the interests of a governmental body usually in competitive bidding situations. See Open Records Decision No. 592 (1991). Generally, section 552.104 does not except bids from public disclosure after bidding is completed and the contract has been awarded. See Open Records Decision 541 (1990).

The city states that it has solicited proposals for a solid waste disposal service for which it has received several responses that it has not disclosed. The city also states that the various competitors for the city's contract do not know what their competitors' proposals contain. Accordingly, the city informs us that "[i]f the content of [the] proposal is made public than the ability of the [c]ity to negotiate with others [would] be detrimentally affected." We therefore conclude that pages 00024-00039 and 00171-00174 are excepted from disclosure based on section 552.104 until such time as the contract is awarded.

Next, both the city and Trinity argue that its bid proposal is excepted from disclosure pursuant to section 552.101 of the Government Code in conjunction with section 252.049 of the Local Government Code.⁽¹⁾ Section 252.049 provides:

(a) Trade secrets and confidential information in competitive sealed bids are not open for public inspection.

(b) If provided in a request for proposals, proposals shall be opened in a manner that avoids disclosure of the contents to competing offerors and keeps the proposals secret during negotiations. All proposals are open for public inspection after the contract is awarded, but trade secrets and confidential information in the proposals are not open for public inspection.

Local Gov't Code § 252.049(a), (b). As a general rule, the statutory confidentiality protected by section 552.101 requires express language making certain information confidential or stating that information shall not be released to the public. Open Records Decision No. 478 (1987). By its plain language, section 252.049 does not expressly make bid proposals confidential. Section 252.049 only requires a governmental body to take adequate precautions to protect bid proposals from competing bidders. The city has taken the necessary precautions by withholding the information and requesting an open records ruling from this office. Accordingly, we find that the bidding information is not deemed confidential under section 252.049.

Trinity also argues that its proposal is excepted from release under section 552.110(b) of the Government Code. Section 552.110(b) excepts from disclosure "[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 requires a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury likely would result from release of the information at issue. See Open Records Decision No. 661 at 5-6 (1999) (stating that business enterprise must show by specific factual evidence that the release of information would cause it substantial competitive harm); see also National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974).

Trinity's arguments, however, consist only of a general statement that release of the submitted information would harm it financially "in future business proceedings for similar contracts." Accordingly, we find that Trinity has failed to establish the applicability of section 552.110(b) to the submitted information. See Open Records Decision No. 661 at 5-6 (1999); see also National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974); see generally Open Records Decision No. 494 (1988) (requiring balancing of public interest in disclosure with competitive injury to company); Open Records Decision No. 319 (1982) (finding information relating to organization, personnel, market studies, professional references, qualifications, and experience not excepted under predecessor to section 552.110).

In summary, the city may withhold pages 00024-00039 and 00171-00174 of the submitted proposal under section 552.104 of the Government Code. The city must release the remainder of the 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,

Maverick F. Fisher
Assistant Attorney General
Open Records Division
MFF/seg
Ref: ID# 167448
Enc. Submitted documents

c: Ms. Donna Higgins
7809 Baywood Court
North Richland Hills, Texas 76180
(w/o enclosures)

Mr. George F. Christie
Pope, Hardwick, Schell & Kelly, L.L.P.
901 Fort Worth Club Building
Fort Worth, Texas 76102-4995
(w/o enclosures)

Footnotes

1. Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Section 552.101 encompasses information protected by other statutes.
 

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