 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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April 27, 2004 Ms. Veronica Ocanas
OR2004-3434 Dear Ms. Ocanas: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 200385. The City of Corpus Christi (the "city") received a request for information related to (1) the Convention Center Expansion Project, and (2) the Corpus Christi Bayfront Multi Purpose Arena. You state that you have released some responsive information to the requestor. You claim that the remaining requested information may be excepted from disclosure under sections 552.110, 552.113, and 552.131 of the Government Code, but you do not raise arguments under these sections. However, you have notified Fulton Construction Company ("Fulton"), Zachry Construction Company ("Zachry"), Satterfield & Pontikes Construction, Inc. ("Satterfield"), Lyda Builders, Inc. ("Lyda"), and NetVersant Solutions, Inc. ("NetVersant"), the third parties whose information is at issue in the current request, pursuant to section 552.305 of the Government Code. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); 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). Fulton and Zachry have responded to the notice, asserting that portions of their information are confidential. We have considered Fulton's and Zachry's arguments and reviewed the information you submitted. Initially, 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, Satterfield, Lyda, and NetVersant have not submitted to this office their reasons explaining why the requested information should not be released. Consequently, these third parties have provided this office with no basis to conclude that their responsive information is excepted from disclosure. See Gov't Code § 552.110(b) (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); Open Records Decision Nos. 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990). Accordingly, we conclude that the city may not withhold any portion of the submitted information relating to Satterfield, Lyda, and NetVersant on the basis of any third party proprietary interest. We note that Fulton makes arguments for withholding a portion of its information entitled "Criterion B-3 Organization and Financial." However, the copy of the proposal submitted by the city does not include Criterion B-3. Therefore, this ruling does not address this information, and is limited to the information submitted as responsive by the city. See Gov't Code § 552.301(e)(1)(D) (governmental body requesting decision from this office must submit copy of specific information requested, or representative sample if voluminous amount of information was requested). Because Fulton's arguments pertain only to Criterion B-3, we do not address Fulton's arguments. We next note that Zachry claims that portions of the submitted information relating to Zachry are excepted from disclosure pursuant to section 552.104 of the Government Code.(1) We note, however, that section 552.104 is not designed to protect the interests of private parties that submit information to a governmental body. See Open Records Decision No. 592 at 8-9 (1991). Section 552.104 excepts information from disclosure if a governmental body demonstrates that the release of the information would cause potential specific harm to its interests in a particular competitive situation. See Open Records Decision Nos. 593 at 2 (1991), 463 (1987), 453 at 3 (1986). We note that the city has not argued that the release of any portion of the submitted information would harm its interests in a particular competitive situation under section 552.104. Accordingly, we conclude that the city may not withhold any portion of Zachry's information under section 552.104 of the Government Code. Zachry argues that disclosure of portions of its information would cause substantial competitive harm and therefore this information should be excepted under section 552.110(b) of the Government Code. Section 552.110(b) protects "[c]ommercial 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[.]" Gov't Code § 552.110(b). This exception to disclosure 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. Gov't Code § 552.110(b); see also Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974); Open Records Decision No. 661 (1999). After carefully reviewing Zachry's arguments and the information at issue in Zachry's proposal, we find that Zachry has not made the specific factual or evidentiary showing that release of this particular information would likely cause the company to suffer substantial competitive injury. Accordingly, we determine that none of the information at issue is excepted from disclosure under section 552.110(b) of the Government Code. See Open Records Decision Nos. 661 (1999) (for information to be withheld under commercial or financial information prong of section 552.110, business must show by specific factual evidence that substantial competitive injury would result from release of particular information at issue), 541 at 8 (1990) (general terms of contract with governmental body are usually not excepted from disclosure), 319 at 3 (1982) (information relating to organization, personnel, and qualifications not ordinarily excepted from disclosure under statutory predecessor to section 552.110). As such, the requested information must be released. 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, Jennifer E. Berry
c: Mr. Mack Rodriguez
Mr. Hector A. Canales
Mr. Steve R. Zander
Mr. George A. Pontikes, Jr.
Mr. W. J. Jack Dysart
Mr. Scott L. Fordham
Footnotes 1. In addressing Zachry's arguments, we note that some of the information Zachry seeks to withhold was not submitted by the city. This ruling does not address that information and is limited to the information submitted as responsive by the city. See Gov't Code § 552.301(e)(1)(D) (governmental body requesting decision from Attorney General must submit copy of specific information requested). |