 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 31, 2005 Ms. Michele Austin
OR2005-00868 Dear Ms. Austin: 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# 217760. The City of Houston (the "city") received a request for 10 categories of information pertaining to the "Invitation to Propose for Health Benefits Delivery System" (the "2003 RFP"). You claim that some of the requested information is excepted from disclosure pursuant to sections 552.104, 552.111, 552.136 and 552.137 of the Government Code. You also state, and provide documentation showing, that pursuant to section 552.305(d), the city notified the following interested third parties of the city's receipt of the request and of each company's right to submit arguments as to why any portion of the requested information should not be released to the requestor: Texas HealthSpring ("HealthSpring") and Texan Plus. 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 the Act in certain circumstances). We have considered the exceptions claimed and reviewed the submitted representative sample of information.(1) Section 552.104 states that information is excepted from required public disclosure if release of the information would give advantage to a competitor or bidder. The purpose of this exception is to protect the interests of a governmental body, usually in competitive bidding situations. See Open Records Decision No. 592 (1991). This exception protects information from public disclosure if the governmental body demonstrates potential harm to its interests in a particular competitive situation. See Open Records Decision No. 463 (1987). Generally, section 552.104 does not except bids from public disclosure after bidding is completed and a contract has been signed. See, e.g., Open Records Decision Nos. 541 (1990), 514 (1988), 306 (1982), 184 (1978), 75 (1975). In this case, you inform us that the information submitted as Exhibits 4, 6 and 7 pertains to negotiations between the city and health care providers regarding health care plans for Medicare-covered city employees. You state that, as of the date the city received this request for information, the contracts regarding this matter have neither been approved by city council nor executed by the mayor. Although you concede that portions of this information will be public once an agreement is approved by city council, you claim that the release of this information prior to such approval would undermine the city's ability to obtain favorable offers, severely compromising the city's negotiating position. Based on your representations and our review of the information at issue, we conclude that the information submitted as Exhibits 4, 6 and 7 may be withheld under section 552.104.(2) Upon examination of the remaining submitted information which you claim may implicate the rights of third parties, we note that this office previously issued Open Records Letter No. 2004-10581 (2004) in response to a request for a decision concerning some of the same information at issue in the current request. In that ruling, we concluded that the city could not withhold information pertaining to HealthSpring or Texan Plus on the basis of any proprietary interest either company may have held in the information. Accordingly, we determine the city must continue to follow our ruling in Open Records Letter No. 2004-10581 as a previous determination, releasing the information pertaining to HealthSpring or Texan Plus at issue in that ruling. See Open Records Decision No. 673 (2001) (governmental body may rely on previous determination when 1) records or information at issue are precisely same records or information previously submitted to this office pursuant to section 552.301(e)(1)(D); 2) governmental body which received request for records or information is same governmental body that previously requested and received ruling from attorney general; 3) prior ruling concluded that precise records or information are or are not excepted from disclosure under Act; and 4) law, facts, and circumstances on which prior ruling was based have not changed since issuance of ruling). Furthermore, as of the date of this letter, neither HealthSpring nor Texan Plus has submitted comments to this office explaining why any portion of the remaining responsive information relating to each entity should not be released. Accordingly, we conclude that the city may not withhold any portion of the remaining information pertaining to HealthSpring or Texan Plus on the basis of any proprietary interest that either entity may have in the remaining responsive information. See, e.g., Open Records Decision Nos. 661 at 5-6 (1999) (to prevent disclosure of commercial or financial information, party must show by specific factual evidence, not conclusory or generalized allegations, that release of requested information would cause that party substantial competitive harm), 552 at 5 (1990) (party must establish prima facie case that information is trade secret). Lastly, you claim that e-mail addresses in the remaining information are excepted from disclosure under section 552.137 of the Government Code. Section 552.137(a) makes confidential certain e-mail addresses of members of the public that are provided for the purpose of communicating electronically with a governmental body. However, section 552.137 does not apply to e-mail addresses contained in a response to a request for bids or proposals, or provided to a governmental body in the course of negotiating the terms of a contract or potential contract. Gov't Code § 552.137(c). Furthermore, this exception does not apply to an e-mail address that a governmental entity maintains for one of its officials or employees. Upon review, we conclude that none of the e-mail addresses in the remaining information may be withheld under section 552.137. In summary, the city may withhold the information in Exhibits 4, 6 and 7 pursuant to section 552.104 of the Government Code. The city must release all remaining responsive information to the requestor. 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, Marc A. Barenblat
c: Mr. Christopher H. Taylor
Mr. Chuck Trinchitella
Mr. Greg Allen
Footnotes 1. We assume that the representative sample of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. 2. Because we reach this conclusion under section 552.104, we need not consider your remaining arguments against the disclosure of the information in Exhibits 6 and 7. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |