 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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April 22, 2004 Mr. Dan Junell
OR2004-3301 Dear Mr. Junell: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 199910. The Teacher Retirement System of Texas ("TRS") received a request for information regarding the Request For Proposals ("RFPs") for Pharmacy Benefit Manager. Specifically, the request asked for the proposals submitted by the third party companies, AdvancePCS, Caremark, and Express Scripts. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.104 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. You also indicate that release of the submitted information may implicate the proprietary interests of the third parties. Accordingly, you state, and provide documentation showing, that you notified AdvancePCS, Caremark, and Express Scripts of the request and of their right to submit arguments to this office as to why the requested 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 section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under Public Information Act in certain circumstances). We received and have considered comments from all three third parties. Section 552.104 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. Open Records Decision No. 541 at 4 (1990). Section 552.104 does not except information relating to competitive bidding situations once a contract has been awarded. Open Records Decision Nos. 306 (1982), 184 (1978). You contend that the release of the submitted information would harm TRS's interests in its pending procurement process. You inform us that "[n]egotiations with Caremark, the respondent initially selected, are still ongoing, and a contract has not yet been finalized or signed." You also inform us that "[i]f negotiations with Caremark are unsuccessful, TRS may enter into competitive negotiations with another respondent or issue a new RFP." You also indicate that "in the event TRS has to reconsider other proposals because the negotiations with Caremark did not result in a final contract, TRS's position would be harmed if the remaining respondents [to the RFP] had access to the three proposals." Based on your arguments and our review of the submitted information, we conclude that the submitted information is excepted from disclosure pursuant to section 552.104 until such time as the contract is awarded.(1) 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, W. David Floyd
c: Ms. Lani Walters
Mr. Thomas J. Roberts
Ms. Sara Hankins
Ms. Susan de Mars
Ms. Lynn Rosenthal Mayer
Footnotes 1. As our ruling is dispositive, we need not address the other claimed exceptions. |