 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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December 5, 2003 Ms. Mary D. Marquez
OR2003-8757 Dear Ms. Marquez: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 192259. The Capital Metropolitan Transportation Authority (the "authority") received two requests for information relating to Request for Proposals ("RFP") No. 11012 and LogicTree Corporation ("LogicTree").(1) You state that the authority has released LogicTree's protest letter and the authority's response. You have submitted LogicTree's initial and final proposals to this office. You claim that e-mail addresses contained in the proposal documents are excepted from disclosure under section 552.137 of the Government Code. You take no position with regard to whether any other information contained in these documents is excepted from disclosure. You believe, however, that the submitted information implicates the proprietary interests of LogicTree. You notified LogicTree of these requests for information and of its right to submit arguments to this office as to why information relating to LogicTree should not be released.(2) We also received correspondence from LogicTree. We have considered all of the submitted arguments and have reviewed the submitted information.(3) We assume that the authority has released any other information that is responsive to these requests, to the extent that any such information existed when the authority received these requests. If not, then the authority must release any such information at this time.(4) We note that chapter 552 of the Government Code does not require the authority to release information that did not exist when it received these requests or to create responsive information.(5) Initially, we address LogicTree's statement that it has been assured by the authority that its confidential and proprietary information is protected from disclosure by the authority's staff under non-disclosure agreements. LogicTree also has designated its proposals as containing confidential and proprietary information. We note, however, that information is not confidential under chapter 552 of the Government Code simply because the party submitting the information anticipates or requests that it be kept confidential. See 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 chapter 552. See Attorney General Opinion JM-672 (1987); Open Records Decision Nos. 541 at 3 (1990) ("[T]he obligations of a governmental body under [the statutory predecessor to chapter 552] cannot be compromised simply by its decision to enter into a contract"), 203 at 1 (1978) (mere expectation of confidentiality by person supplying information does not satisfy requirements of statutory predecessor to section 552.110). Consequently, unless the information at issue comes within an exception to disclosure, it must be released, notwithstanding any expectation or agreement to the contrary. LogicTree raises sections 552.101, 552.102, 552.104, 552.110, and 552.131 of the Government Code. Section 552.101 excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception encompasses information that is deemed to be confidential under other law. See Open Records Decision Nos. 600 at 4 (1992) (constitutional privacy), 478 at 2 (1987) (statutory confidentiality) 611 at 1 (1992) (common law privacy). Neither the authority nor LogicTree has directed our attention to any law, nor is this office otherwise aware of any law, under which any of the submitted information is deemed to be confidential. Therefore, none of the submitted information may be withheld from disclosure under section 552.101 of the Government Code. Section 552.102 of the Government Code excepts from public disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]" Gov't Code § 552.102(a). Section 552.102(a) is applicable to personnel information that relates to public officials and employees. See Open Records Decision No. 327 at 2 (1982) (anything relating to employee's employment and its terms constitutes information relevant to person's employment relationship and is part of employee's personnel file). As the information at issue does not consist of personnel information pertaining to public officials or employees, none of this information may be withheld from disclosure under section 552.102. Section 552.104 of the Government Code excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." This exception protects the interests of governmental bodies, not the proprietary interests of a private party such as LogicTree that has submitted information to a governmental body. See Open Records Decision No. 592 at 8 (1991) (discussing statutory predecessor). Furthermore, section 552.104 is a discretionary exception to disclosure that a governmental body may waive. In this instance, the authority has not raised section 552.104. Therefore, none of the submitted information may be withheld from disclosure under section 552.104. Section 552.110 of the Government Code protects the proprietary interests of private parties by excepting from disclosure two types of information: (1) "[a] trade secret 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." See Gov't Code § 552.110(a)-(b). The Texas Supreme Court has adopted the definition of a "trade secret" from section 757 of the Restatement of Torts, which holds a "trade secret" to be 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 a single or ephemeral event 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); see also Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex. 1958), cert. denied, 358 U.S. 898 (1958). If the governmental body takes no position on the application of the "trade secrets" aspect of section 552.110 to the information at issue, this office will accept a private person's claim for exception as valid under section 552.110(a) if that person establishes a prima facie case for the exception, and no one submits an argument that rebuts the claim as a matter of law.(6) See Open Records Decision No. 552 at 5 (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). Section 552.110(b) requires a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from release of the information at issue. See also Open Records Decision No. 661 at 5-6 (1999) (business enterprise must show by specific factual evidence that release of information would cause it substantial competitive harm). LogicTree asserts that all of the information contained in or related to its proposals should be withheld from disclosure. Having considered all of LogicTree's arguments and reviewed the submitted information, we conclude that the authority must withhold portions of this information under section 552.110. We have marked that information accordingly. We otherwise find that LogicTree has not established that any of the remaining information qualifies as a trade secret under section 552.110(a). Likewise, LogicTree has not adequately demonstrated, for purposes of section 552.110(b), that the release of any of the remaining information would cause LogicTree any substantial competitive harm. Therefore, none of the remaining information is excepted from disclosure under section 552.110. See also Open Records Decision Nos. 509 at 5 (1988) (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 at 3 (1982) (statutory predecessor to section 552.110 generally not applicable to information relating to organization and personnel, market studies, professional references, qualifications and experience, and pricing). Logictree also raises section 552.131 of the Government Code. This exception relates to economic development information and provides as follows: (a) Information is excepted from [required public disclosure] 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 territory of the governmental body and the information relates to: (1) a trade secret of the business prospect; or (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. (b) Unless and until an agreement is made with the business prospect, information about a financial or other incentive being offered to the business prospect by the governmental body or by another person is excepted from [required public disclosure]. (c) After an agreement is made with the business prospect, this section does not except from [required public disclosure] information about a financial or other incentive being offered to the business prospect: (1) by the governmental body; or (2) by another person, if the financial or other incentive may directly or indirectly result in the expenditure of public funds by a governmental body or a reduction in revenue received by a governmental body from any source. Gov't Code § 552.131. Section 552.131(a) excepts from disclosure only "trade secrets" and "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." This aspect of section 552.131 is co-extensive with section 552.110. See Gov't Code § 552.110(a)-(b). Section 552.131(b) protects information about a financial or other incentive that is being offered to a business prospect by a governmental body or another person. As LogicTree has not established that any of the remaining information is excepted from disclosure under section 552.110 or that any of this information relates to a financial or other incentive that is being offered to a business prospect by a governmental body or another person, none of the remaining information is excepted from disclosure under section 552.131 of the Government Code. Next, we address the authority's claim under section 552.137 of the Government Code. As amended by the 78th Legislature, this section provides as follows: (a) Except as otherwise provided by this section, 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. (c) Subsection (a) does not apply to an e-mail address: (1) provided to a governmental body by a person who has a contractual relationship with the governmental body or by the contractor's agent; (2) provided to a governmental body by a vendor who seeks to contract with the governmental body or by the vendor's agent; (3) contained in a response to a request for bids or proposals, contained in a response to similar invitations soliciting offers or information relating to a potential contract, or provided to a governmental body in the course of negotiating the terms of a contract or potential contract; or (4) provided to a governmental body on a letterhead, coversheet, printed document, or other document made available to the public. (d) Subsection (a) does not prevent a governmental body from disclosing an e- mail address for any reason to another governmental body or to a federal agency. Act of June 2, 2003, 78th Leg., R.S., ch. 1089, § 1, 2003 Tex. Sess. Law Serv. 3124 (to be codified as amendment to Gov't Code § 552.137). Section 552.137 excepts from public disclosure certain e-mail addresses of members of the public that are provided for the purpose of communicating electronically with a governmental body, unless the individual to whom the e-mail address belongs has affirmatively consented to its public disclosure. In this instance, however, the e-mail addresses contained in the submitted proposals fall within the scope of section 552.137(c). Therefore, none of the submitted e-mail addresses is excepted from disclosure under section 552.137. Lastly, we note that some of the submitted information is protected by copyright. A governmental body must allow inspection of copyrighted materials unless an exception to disclosure applies to the information. See Attorney General Opinion JM-672 (1987). An officer for public information must comply with the copyright law, however, and is not required to furnish copies of records that are copyrighted. Id. If a member of the public wishes to make copies of copyrighted materials, he or she 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 at 8-9 (1990). In summary, the authority must withhold the marked information that is excepted from disclosure under section 552.110 of the Government Code. The authority must release the rest of the submitted information, complying with copyright law in doing so. 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, Kristen Bates
c: Mr. Sanjay B. Desai
Mr. Joe Kitos
Mr. Fred Korangy
Footnotes 1. The first request is for LogicTree's final proposal, any related documents, and LogicTree's protest regarding the final award of the contract. The second request is for LogicTree's proposal and final proposal revision, its protest letter regarding the award of the contract, and the authority's response to the protest letter. 2. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure in certain circumstances). 3. This decision is applicable only to the information that the authority has submitted to this office. This decision does not address the public availability of any other information in the custody or control of the authority that may be responsive to these requests. See Gov't Code § 552.301(e)(1)(D) (governmental body requesting decision from Attorney General must submit copy of specific information requested, or representative sample if voluminous amount of information was requested). 4. See Gov't Code §§ 552.301, .302; Open Records Decision No. 664 (2000). 5. See Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 452 at 3 (1986), 362 at 2 (1983). 6. The Restatement of Torts lists the following six factors as indicia of whether information constitutes a trade secret: (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 |