 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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September 24, 2003 Ms. Therese Sternenberg
OR2003-6706 Dear Ms. Sternenberg: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 188253. The Texas Guaranteed Student Loan Corporation (the "corporation") received a request for "the open records pricing that was submitted in the previous RFP for Information Technology Support Services" by three specified companies. You claim that the requested information is excepted from disclosure under section 552.104 of the Government Code. We have considered the exception you claim and reviewed the submitted information. Section 552.104 of the Government Code excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." The purpose of section 552.104 is to protect a governmental body's interests in competitive bidding situations. See Open Records Decision No. 592 (1991). Moreover, section 552.104 requires a showing of some actual or specific harm in a particular competitive situation; a general allegation that a competitor will gain an unfair advantage will not suffice. See Open Records Decision No. 541 at 4 (1990). As you acknowledge, section 552.104 generally does not except information relating to competitive bidding situations once a contract has been awarded. See Open Records Decision Nos. 306 (1982), 184 (1978). You state that the corporation currently has a request for proposal ("RFP") in the bidding process, and the requestor's employer is one of the bidders expected to respond. You also state that "[r]elease of the pricing from the previous bidders (who are also [the requestor's] competitors in the current RFP) will result in detriment to [the corporation's] ability to obtain truly competitive pricing in its current RFP process." Upon review of the corporation's arguments and the submitted information, we conclude that you have demonstrated that public release of the information at issue would cause specific harm to the corporation's interests in a particular competitive bidding situation. Accordingly, the corporation has adequately demonstrated the applicability of section 552.104 to the submitted information. Therefore, the corporation may withhold the submitted information from required public disclosure under section 552.104 of the Government Code until such time as the contract is awarded. 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, Sarah I. Swanson
c: Ms. Angelica Mendivil
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |