 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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June 9, 2006 Ms. Sharon Alexander
OR2006-06090 Dear Ms. Alexander: 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# 254166. The Texas Department of Transportation (the "department") received nine requests for information pertaining to a requisition for medical transportation services, including scoring information. You claim that the submitted information is excepted from disclosure under sections 552.104, 552.107, and 552.111 of the Government Code.(1) You indicate that the submitted information may also be excepted under section 552.110 of the Government Code, but take no position as to whether this information is excepted under that section.(2) We have considered your arguments and reviewed the submitted representative sample of information.(3) We have also considered arguments submitted by interested third parties. See Gov't Code § 552.305. 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 inform us that the submitted information pertains to a specific competitive bid, and the contract arising from that bid has not yet been awarded. You also assert that release of this information could undermine the contract negotiation process and result in less competition, and possible collusion of vendors as to price fixing, to the detriment of the public and the department. After considering your representations and reviewing the submitted documents, we conclude the department may withhold the submitted information under section 552.104 of the Government Code until the contract at issue has been executed.(4) 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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 Office of the Attorney General 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 L. Coggeshall
c: Mr. John Walraven
Mr. Carlos De La Rosa
Mr. Kenneth N. Jones, Jr.
Mr. Chester R. Jourdan, Jr.
Mr. Tom McDonnell
Nassex Mansourian
Mr. Karl Kuhlman
Mr. Eliseo A. Chapa
c: Ms. Cindy Krueger
Mr. Rudolph Bruhns
Ms. Darla Bell
Capital Area Rural Trans System
Lulac Project Amistad
Border Taxi Cab Company
Judi's Carrier, Inc.
Teresa Janeaux
c: Mr. Jimmie Cummings
Med Trans Management Inc.
Mr. Ken Hoggard
Ms. Liz George and Mr. Jeffrey L. Finkel
Panhandle Community Services
Ms. Lynda Woods-Pugh
Ms. Kristine Box
Executive Director Ven Hammonds
c: Ms. Lisa A. Cortinas
Ms. Janet Everheart
Mr. Roger Cardenas
Mr. John L. Wilson
Mr. F. W. Taylor
Mr. Gregg Chiasson
Ms. Alaina Macia
c: Waco Transit
Ms. Jacque Wolske
Mr. Robert Stephens
Ms. Carole Warlick
Ms. Judi Wright
Ms. Sarah Hidalgo-Cook
Mr. Tom McDonnell
Footnotes 1. Although you raise section 552.101 in conjunction with the attorney-client privilege, this office has concluded that section 552.101 does not encompass discovery privileges. See Open Records Decision Nos. 676 at 1-2 (2002), 575 at 2 (1990). 2. You inform us that the interested third parties have been notified of the department's receipt of the request for information and of their right to submit arguments to this office as to why the requested information should not be released to the requestor. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in the Act in certain circumstances). 3. 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. 4. As we are able to resolve this under section 552.104, we do not address the remaining arguments for exception of the submitted information. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |