 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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March 5, 2003 Mr. Robert R. Ray
OR2003-1429 Dear Mr. Ray: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 177397. The City of Longview (the "city") received two requests for information relating to a request for proposals for a public safety communications software system. You state that some responsive information has been released. The city takes no position as to whether the remaining responsive information may be withheld pursuant to an exception to the Public Information Act (the "Act"). You further state, however, that release of the remaining responsive information may implicate the proprietary interests of third parties. You state, and provide documentation showing, that you notified third party bidders Open Software Solutions, Inc. ("OSSI"), Tiburon, Inc. ("Tiburon"), Global Software Corp. ("Global"), Logistic Systems, Inc. ("Logistic"), Intergraph Public Safety ("Intergraph"), Tri-Tech Software Systems ("Tri-Tech"), New World Systems ("New World"), and VisionAir, Inc. ("VisionAir") of the requests 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 Act in certain circumstances). We have reviewed the submitted information. Initially, we must address the city's obligations under section 552.301 of the Government Code. Sections 552.301(a) and (b) provide: (a) A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the [Act's] exceptions . . . must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions. (b) The governmental body must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the tenth business day after the date of receiving the written request. You acknowledge that the city failed to request a decision within the ten business day deadline mandated by section 552.301(b) of the Government Code. Because the city failed to comply with section 552.301(b), the requested information is presumed to be public information. Gov't Code § 552.302. Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code § 552.302); Open Records Decision No. 319 (1982). A governmental body can demonstrate a compelling reason to overcome the presumption of openness by a showing that information is made confidential by another source of law or affects third party interests. Open Records Decision No. 630 (1994). Because the present request affects third party interests, we will address the section 552.110 arguments we have received from companies that responded to the city's section 552.305 notice. We note that the submitted information pertaining to OSSI, Tiburon, Global, Logistic, Intergraph, Tri-Tech, and New World is designated as confidential. However, information is not confidential under the Act simply because the party submitting the information anticipates or requests that it be kept confidential. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). In other words, a governmental body cannot, through an agreement or contract, overrule or repeal provisions of the Act. Attorney General Opinion JM-672 (1987); Open Records Decision No. 541 at 3 (1990) ("[T]he obligations of a governmental body under [the predecessor to the Act] cannot be compromised simply by its decision to enter into a contract."). Consequently, unless the information at issue falls within an exception to disclosure, it must be released, notwithstanding any agreement specifying otherwise. With respect to information relating to OSSI, Tiburon, Global, and VisionAir, 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, OSSI, Tiburon, Global, and VisionAir have not submitted any comments to this office explaining why their respective proposals should not be released to the requestors. Therefore, we have no basis to conclude that the release of the proposals of OSSI, Tiburon, Global, and VisionAir would implicate the companies' proprietary interests under section 552.110. See Open Records Decision Nos. 639 at 4 (1996) (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), 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990). Thus, we determine that the city may not withhold the proposals of OSSI, Tiburon, Global, and VisionAir pursuant to section 552.110 of the Government Code. Logistic, Intergraph, Tri-Tech, and New World have provided comments to this office in which the companies identify portions of their respective proposals that they contend are excepted from disclosure. Upon review, we find that some of the information that Logistic, Intergraph, Tri-Tech, and New World seek to withhold has not been submitted to this office for our review. We do not reach the arguments submitted by Logistic, Intergraph, Tri-Tech, and New World pertaining to portions of the proposals at issue that have not been submitted for our review. See Gov't Code § 552.301(e)(1)(D) (governmental body seeking attorney general's opinion under the Act must submit a copy or representative samples of the specific information requested). With respect to the information submitted to this office, we will address the arguments of Logistic, Intergraph, Tri-Tech, and New World pursuant to 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. 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 party's claim for exception as valid under that branch if that party 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). However, we cannot conclude that section 552.110(a) is applicable unless it has been shown that the information meets the definition of a trade secret and the necessary factors have been demonstrated to establish a trade secret claim. Open Records Decision No. 402 (1983). A governmental body, or interested third party, seeking to withhold information pursuant to section 552.110(b) must provide a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from disclosure. Gov't Code § 552.110(b); see also National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). Based on our review of the companies' arguments and the submitted information, we find that Tri-Tech has established a prima facie case that portions of its proposal are excepted from disclosure under section 552.110(a) of the Government Code. We have marked the information pertaining to Tri-Tech that the city must withhold pursuant to section 552.110(a). With respect to the remaining submitted information pertaining to Tri-Tech, however, we determine that Tri-Tech has not established a prima facie case that the information is excepted under 552.110(a). Accordingly, the city may not withhold the remaining submitted information pertaining to Tri-Tech pursuant to section 552.110(a). With respect to the submitted information pertaining to Logistic, Intergraph, and New World, we further determine that Logistic, Intergraph, and New World have not established a prima facie case that any portion of their respective proposals are excepted from disclosure under section 552.110(a). Accordingly, the submitted information pertaining to Logistic, Intergraph, and New World may not be withheld pursuant to section 552.110(a). Logistic, Intergraph, New World, and Tri-Tech also assert that the proposals at issue contain confidential commercial and financial information, disclosure of which would cause significant competitive harm. Upon review, however, we find that Logistic, Intergraph, New World, and Tri-Tech have provided general, conclusory statements that release of commercial or financial information would cause substantial competitive harm, and have not substantiated their comments with specific factual evidence. Thus, we are unable to determine that section 552.110(b) applies to any of the information pertaining to Logistic, Intergraph, New World, or Tri-Tech. See Open Records Decision No. 319 at 3 (1982) (information relating to organization and personnel, market studies, professional references, qualifications and experience, and pricing are not ordinarily excepted from disclosure under statutory predecessor); see also Open Records Decision Nos. 661 (1999), 541 at 8 (1990) (general terms of contract with governmental body are usually not excepted from disclosure), 509 at 5 (1988) (stating that because costs, bid specifications, and circumstances would change for future contracts, assertion that release of bid proposal might give competitor unfair advantage on future contracts was entirely too speculative), 319(1982); see generally Freedom of Information Act Guide & Privacy Act Overview (1995) 136-138, 140-141, 151-152 (disclosure of prices is cost of doing business with government). Cf. Open Records Decision Nos. 514 (1988) (public has an interest in knowing prices charged by government contractors), 184 (1978). Accordingly, we determine that the city may not withhold any portion of the submitted information pertaining to Logistic, Intergraph, New World, or Tri-Tech under section 552.110(b) of the Government Code. We note that the submitted information pertaining to OSSI, Intergraph, and VisionAir contains e-mail addresses. Section 552.137 of the Government Code provides: (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. Unless the relevant individuals have affirmatively consented to the release of their e-mail addresses, the city must withhold the e-mail addresses that we have marked under section 552.137 of the Government Code. Finally, we note that some of the submitted information is protected by copyright. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are protected by copyright. Attorney General Opinion JM-672 (1987). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id. If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 (1990). In summary, the city must withhold the information we have marked pursuant to section 552.110(a) of the Government Code. The city must withhold the marked e-mail addresses pursuant to section 552.137 of the Government Code. The remainder of the submitted information must be released in compliance with copyright law. 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 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, David R. Saldivar
c: Ms. Andrea Heppe
Mr. Michael A. Mize
Mr. Dennis K. Knight
Ms. Carol Minjares
Ms. Deborah Fabacher
Mr. Greg Wandrei
Mr. Robbie Linville
Ms. Trish Layne
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). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |