 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
|
April 29, 2004 Ms. Moira Parro
OR2004-3535 Dear Ms. Parro: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 199301. Dallas County (the "county") received a request for its office supply contract. Although you raise no exceptions to disclosure on behalf of the county, you assert that the release of the requested information may implicate the proprietary interests of a third party. Accordingly, you notified the interested third party, Office Depot, of the request and of its right to submit arguments to this office as to why the information should not be released. See Gov't Code § 552.305(d) (permitting third party with proprietary interest 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 Gov't Code § 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). Office Depot responded to your notice by asserting that its pricing information is excepted from disclosure under section 552.110(b) of the Government Code. Initially, we note that the county failed to submit the requested information within the statutory time period. See Gov't Code § 552.301(e) (providing that governmental body seeking decision from Office of Attorney General must submit certain items to that office within fifteen business days of receiving written request for information). The county's delay in this matter results in the presumption that the requested information is public. See id. § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ). In order to overcome the presumption of openness, a compelling reason must be shown that the information should not be disclosed. Hancock, 797 S.W.2d at 381. Since the applicability of section 552.110 can provide a compelling reason, we will address Office Depot's arguments against disclosure. 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 National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974); Open Records Decision No. 661 (1999). After reviewing the arguments and the submitted information, we conclude that Office Deport has demonstrated that the release of some of its pricing information would cause the company substantial competitive harm. But see Open Records Decision Nos. 514 (1988) (questioning whether pricing information or other general terms of contract with state agency could ever constitute trade secret), 494 (1988) (application of commercial or financial information prong of Gov't Code § 552.110 requires balancing of public interest in disclosure with competitive injury to company in question). We note, however, that Office Depot has failed to demonstrate that the prices it charges the county are protected by section 552.110. See Open Records Decision No. 541 at 8 (1990) (public has interest in knowing terms of contract with state agency); see generally Freedom of Information Act Guide & Privacy Act Overview at 136-138, 140-141, 151-152 (1995) (disclosure of prices is cost of doing business with government); cf. Open Records Decision No. 514 (1988) (public has interest in knowing prices charged by government contractors). Thus, the county must release to the requestor the description of the item and the contractual price paid for that item. The remaining information must be withheld from disclosure under section 552.110(b). 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, June B. Harden
c: Mr. Derrell Conway
|