 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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June 3, 2004 Mr. Brett Bray
OR2004-4546 Dear Mr. Bray: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 202755. The Texas Department of Transportation (the "department") received a request for information relating to "Discount Wholesalers" and "Toys & Trucks." You inform us that the department is releasing some of the requested information. You claim that other responsive information is excepted from disclosure under sections 552.101 and 552.130 of the Government Code. You also believe that this request for information implicates the proprietary interests of private third parties under section 552.110. You have submitted the information that may be excepted from disclosure. You also notified Discount Wholesalers and Toys & Trucks of this request for information and their right to submit arguments to this office as to why the information should not be released.(1) We also received correspondence from the owner of Discount Wholesalers and an attorney for Toys & Trucks. We have considered all the submitted arguments and have reviewed the submitted information. Section 552.101 excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses information that other statutes make confidential. Section 6103(a) of title 26 of the United States Code makes federal tax return information confidential. The term "return information" includes "the nature, source, or amount of income" of a taxpayer. See 26 U.S.C. § 6103(b)(2). The department must withhold the submitted corporate income tax return under section 552.101 in conjunction with section 6103(a) of title 26 of the United States Code. Section 552.101 also incorporates section 58.001 of the Occupations Code, which provides as follows: The social security number of an applicant for or holder of a license, certificate of registration, or other legal authorization issued by a licensing agency to practice in a specific occupation or profession that is provided to the licensing agency is confidential and not subject to disclosure under Chapter 552, Government Code. Occ. Code § 58.001.(2) We note that a previous determination issued by this office under the statutory predecessor to section 58.001 authorizes the department to withhold social security numbers appearing on application materials for licenses issued by the department that authorize applicants to maintain motor vehicle dealerships without the necessity of again requesting an attorney general decision. See Open Records Letter No. 2001-6050 (2001); see also Gov't Code § 552.301(a); Open Records Decision No. 673 at 7-8 (2001) (listing elements of second type of previous determination under Gov't Code § 552.301). We agree that the social security numbers that you have marked are encompassed by Open Records Letter No. 2001-6050 (2001) and must be withheld from disclosure. We have marked additional social security numbers that you also must withhold under section 552.101 in conjunction with section 58.001 of the Occupations Code. Section 552.101 also encompasses the common-law right to privacy. Information must be withheld from the public under section 552.101 in conjunction with common-law privacy when the information is (1) highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) of no legitimate public interest. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The common-law right to privacy encompasses some types of personal financial information. This office has determined that financial information that relates only to an individual ordinarily satisfies the first element of the common-law privacy test, but the public has a legitimate interest in the essential facts about a financial transaction between an individual and a governmental body. See, e.g., Open Records Decision Nos. 545 at 4 (1990) ("In general, we have found the kinds of financial information not excepted from public disclosure by common-law privacy to be those regarding the receipt of governmental funds or debts owed to governmental entities"), 523 at 4 (1989) (noting distinction under common-law privacy between confidential background financial information furnished to public body about individual and basic facts regarding particular financial transaction between individual and public body), 373 at 4 (1983) (determination of whether public's interest in obtaining personal financial information is sufficient to justify its disclosure must be made on case-by-case basis). We note, however, that common-law privacy protects the interests of individuals, not those of corporations and other types of business organizations. See Open Records Decision Nos. 620 (1993) (corporation has no right to privacy), 192 (1978) (right to privacy is designed primarily to protect human feelings and sensibilities, rather than property, business, or other pecuniary interests); see also U. S. v. Morton Salt Co., 338 U.S. 632, 652 (1950) (cited in Rosen v. Matthews Constr. Co., 777 S.W.2d 434 (Tex. App.--Houston [14th Dist.] 1989), rev'd on other grounds, 796 S.W.2d 692 (Tex. 1990)) (corporation has no right to privacy). We have marked personal financial information that relates to individuals and is protected by common-law privacy. The department must withhold the marked information under section 552.101. The department also raises section 552.130. This section excepts from public disclosure information that relates to (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or] (2) a motor vehicle title or registration issued by an agency of this state[.] Gov't Code § 552.130(a)(1)-(2). Section 552.130(a)(1) encompasses information that relates to Texas driver's licenses. Section 552.130(a)(2) encompasses information that relates to Texas motor vehicle titles, registrations, and identification numbers. Open Records Letter No. 2001-4775 (2001) authorizes the department to withhold certain Texas driver's license numbers, Texas dealer plate numbers, and Texas vehicle identification numbers under section 552.130 without the necessity of requesting an attorney general decision. See Gov't Code § 552.301(a); Open Records Decision No. 673 at 7-8 (2001). We agree that the Texas driver's license and motor vehicle information that you have marked is encompassed by Open Records Letter No. 2001-4775 (2001) and must be withheld. We have marked additional information that the department also must withhold under section 552.130. The department also must withhold some of the submitted information under section 552.136. This section provides as follows (a) In this section, "access device" means a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to: (1) obtain money, goods, services, or another thing of value; or (2) initiate a transfer of funds other than a transfer originated solely by paper instrument. (b) Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential. Gov't Code § 552.136. We have marked bank account number information that the department must withhold under section 552.136. Next, we address the arguments that we received from Discount Wholesalers and Toys & Trucks. Both parties assert that the submitted documents contain trade secrets and commercial and financial information. Section 552.110 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." 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" component of section 552.110 to the information at issue, this office will accept a private person's claim for exception as valid under that component 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.(3) See Open Records Decision No. 552 at 5 (1990). 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). Having considered the arguments submitted by Discount Wholesalers and Toys & Trucks, we conclude that neither party has established a prima facie claim that any of the remaining information qualifies as a trade secret under section 552.110(a). Likewise, neither party has made the specific demonstration required by section 552.110(b) that the release of any of the remaining information would be likely to result in any substantial competitive harm to either Discount Wholesalers or Toys & Trucks. We therefore conclude that none of the remaining information is excepted from disclosure under section 552.110. Lastly, we note that some of the remaining information relating to Discount Wholesalers is protected by copyright. A governmental body must allow inspection of copyrighted information unless an exception to disclosure applies to the information. See Attorney General Opinion JM-672 (1987). An officer for public information also must comply with copyright law, however, and is not required to furnish copies of copyrighted information. 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: (1) the department must withhold the tax return information under section 552.101 in conjunction with section 6103 of title 26 of the United States Code; (2) the social security numbers must be withheld under section 552.101 in conjunction with section 58.001 of the Occupations Code; (3) the department must withhold the personal financial information that is protected by common-law privacy under section 552.101; (4) the Texas driver's license and motor vehicle information must be withheld under section 552.130; and (5) the account number information must be withheld under section 552.136. The department must release the rest of the submitted information. In releasing the information relating to Discount Wholesalers that is protected by copyright, the department must comply with copyright law. You also ask this office to issue a previous determination that would authorize the department to withhold ownership percentages, inventory values, telephone verifications, property leases, personal financial information, copies of checks, copyrighted information, and corporate income tax return information without the necessity of again requesting an attorney general decision as to these types of information. See Gov't Code § 552.301(a); Open Records Decision No. 673 (2001). We decline to do so at this time. 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, James W. Morris, III
c: Mr. John Drake
Ms. Pam Nicar
Mr. Luke C. Carrabba
Footnotes 1. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (statutory predecessor to Gov't Code § 552.305 permitted governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under certain circumstances). 2. The Seventy-eighth Legislature renumbered former section 56.001 of the Occupations Code as section 58.001. See Act of June 21, 2003, 78th Leg., R.S., ch. 1275, § 2(112), 2003 Tex. Sess. Law Serv. 4146. 3. 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 other 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). |