 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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April 25, 2003 Ms. Harlene Kennedy
OR2003-2791 Dear Ms. Kennedy: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 180018. The City of San Antonio (the "city") received a request for "records involving both the proposed stormwater detention facility and the developer's floodplain reclamation of project." The requestor indicates that some responsive information has been released to him. You claim that a portion of the submitted information is excepted from disclosure under sections 552.105 and 552.131 of the Government Code. You also claim that the release of some of the requested information may implicate the proprietary rights of interested third parties pursuant to section 552.110 of the Government Code. Pursuant to section 552.305, you indicate that you notified Brown Engineering ("Brown") and Pape Dawson Engineering ("Pape"), the parties with a proprietary interest in a portion of the information, of the request for information and of each company's right to submit arguments to this office as to why the requested information should not be released. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); see also Open Records Decision No. 542 (1990) (determining that statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Act in certain circumstances). We have considered the claimed exceptions and reviewed the submitted representative sample of information.(1) We will first address your responsibilities under the Public Information Act (the "Act"). Subsections 552.301(a) and (b) of the Government Code 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 10th business day after the date of receiving the written request. You state that the city received the request for information on February 11, 2003. However, the documents you have provided show that the request was actually received on January 24, 2003.(2) A subsequent communication from the requestor is dated February 11, 2003, references his January 24, 2003 request, and states that the requestor agreed "to toll the time by which [the city] would be required to seek an attorney general opinion." However, the deadlines contained in section 552.301 are fixed by statute and cannot be altered by an agreement. See Open Records Decision No. 541 at 3 (1990) ("[T]he obligations of a governmental body under the [predecessor to the Public Information] act cannot be compromised simply by its decision to enter into a contract. See Attorney General Opinion JM-672 (1987); Open Records Decision No. 514 (1988)."); see also Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976) (governmental agency may not bring information within scope of predecessor to section 552.101 of Government Code by promulgation of rule; to imply such authority merely from general rule-making powers would be to allow agency to circumvent very purpose of predecessor to Public Information Act), Bristol-Myers Squibb Co. v. Goldston, 957 S.W.2d 671, 673 (Tex. App.-Fort Worth 1997, pet. denied) ("Because venue is fixed by law, any agreement or contract whereby the parties try to extend or restrict venue is void as against public policy.") You did not submit a request for a ruling or provide the documents required under section 552.301(e) until February 20, 2003. Thus, you failed to meet both deadlines prescribed by section 552.301. Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the procedural requirements of 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). The city argues that the submitted information is excepted under sections 552.105 and 552.131 of the Government Code. Sections 552.105 and 552.131(b) are discretionary exceptions under the Act that do not constitute a compelling reason sufficient to overcome the presumption that the requested information is public. See Gov't Code §552.007(a); Open Records Decision No. 522 (1989) (discretionary exceptions in general). However, sections 552.110 and 552.131(a) of the Government Code may provide a compelling reason to overcome the presumption of openness. See Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). Thus, we will address those arguments. Section 552.305(d) allows a third party ten business days after the date of its receipt of the governmental body's notice to submit its reasons, if any, as to why information relating to that party should not be released. See Gov't Code § 552.305(d)(2)(B). As of the date of this ruling, no response has been received from either Brown or Pape. Because the third parties did not submit arguments in response to the section 552.305 notice, no third party has provided us with any basis to conclude that the information at issue is protected proprietary information. 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), 542 at 3 (1990). Therefore, we will address the city's arguments against disclosure of the information at issue under section 552.131(a). Section 552.131(a) excepts from public disclosure a business prospect's trade secret or commercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm if the information relates to economic development negotiations involving a governmental body and a business prospect that the governmental body seeks to have locate, stay, or expand in or near the governmental body's territory. Gov't Code § 552.131(a). Section 552.131(a) is inapplicable to information about a financial or other incentive offered the business prospect after a governmental body reaches an agreement with the business prospect. Gov't Code § 552.131(b),(c). Neither you nor any interested third party has demonstrated how any of the submitted information relates to a trade secret or commercial or financial information the release of which would cause substantial competitive harm to the person from whom the information was obtained. Therefore, we conclude that section 552.131(a) is inapplicable to the submitted information. As you assert no other exceptions to disclosure, the submitted information 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, Cindy Nettles
c: Mr. Habib H. Erkan, Jr.
Brown Engineering
Pape Dawson Engineering
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. 2. We note that the requestor also references an additional request for information he has made to the city. However, the city has not asked for a decision from this office on any other requests, and therefore, we do not address any other requests. See Gov't Code § 552.301(a), (b). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |