 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 5, 2007 Mr. Robert Giddings OR2007-01431 Dear Mr. Giddings: 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# 269547. The Texas Department of Banking (the "department") received a request for "the entire application on file for Economic Advantages Corporation[.]" You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. You also state that release of this information may implicate the proprietary interests of Economic Advantages Corporation ("EAC"). Accordingly, you inform us, and provide documentation showing, that you notified EAC of the request and of its right to submit arguments to this office as to why its information should not be released. See Gov't Code § 552.305(d) (permitting interested third party 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 section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure in certain circumstances). We have considered the submitted arguments and reviewed the submitted information. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information protected by other statutes. Section 151.606(a) of the Finance Code provides that: [e]xcept as otherwise provided by Subsection (b) or rule of the [Finance Commission of Texas], all financial information and all other personal information obtained by the [Banking Commissioner of Texas (the "commissioner")] under this chapter through application, examination, investigation, or otherwise, and any related file or record of the [Texas Department of Banking], is confidential and not subject to disclosure. Finance Code § 151.606(a). Section 151.606 also provides for specific circumstances in which information that is made confidential under that section may be released. See id. § 151.606(a), (b). You state that the submitted financial and personal information was obtained by the department as part of the application process. Further, you state that EAC has not consented to the release of this information and the commissioner has not made the requisite findings necessary to release the information under section 151.606(b). Based on your representations and our review, we conclude that the financial and personal information we have marked is confidential, unless the names and addresses are subject to section 151.606(c)(1) of the Finance Code. See id. § 151.606(c)(1) (section 151.606 does not prohibit the commissioner from disclosing to the public a list of license holders or authorized delegates, including names and addresses of contact individuals). Accordingly, the department must withhold the marked information pursuant to section 552.101 of the Government Code. However, we find that none of the remaining information consists of financial or personal information that is protected under section 151.606(a). Therefore, none of the remaining information may be withheld under section 552.101 on that basis. EAC claims that most of the remaining information is excepted from disclosure under section 552.110 of the Government Code. Section 552.110 of the Government Code protects the proprietary interests of private persons by excepting from disclosure two types of information: (1) trade secrets 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. The Texas Supreme Court has adopted the definition of trade secret from section 757 of the Restatement of Torts. Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex.), cert. denied, 358 U.S. 898 (1958); see also Open Records Decision No. 552 at 2 (1990). Section 757 provides that a trade secret is 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 single or ephemeral events 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). In determining whether particular information constitutes a trade secret, this office considers the Restatement's definition of trade secret as well as the Restatement's list of six trade secret factors. (1) Id. This office has held that if a governmental body takes no position with regard to the application of the trade secret branch of section 552.110 to requested information, we must accept a private person's claim for exception as valid under that branch if that person establishes a prima facie case for exception and no argument is submitted that rebuts the claim as a matter of law. Open Records Decision No. 552 at 5-6 (1990). However, we cannot conclude that section 552.110(a) applies unless it has been shown that the information meets the definition of a trade secret and the necessary factors have been demonstrated to establish a trade secret claim. See Open Records Decision No. 402 (1983). Section 552.110(b) of the Government Code excepts from disclosure "[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. See id.; see also Open Records Decision No. 661 (1999). Upon review of the information at issue and arguments, we find that the EAC has made only conclusory allegations that release of the information would result in substantial competitive harm to the company and has not provided a specific factual or evidentiary showing to support this allegation. Furthermore, we find that the EAC has not shown that any of the information at issue meets the definition of a trade secret, nor demonstrated the necessary factors to establish a trade secret claim. Thus, none of this information may be withheld under section 552.110. We note that some of the remaining information is excepted from disclosure under section 552.136 of the Government Code. (2) Section 552.136 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. Id. § 552.136. The department must withhold the information we have marked pursuant to section 552.136 of the Government Code. Next, section 552.137 of the Government Code makes certain e-mail addresses confidential. Under section 552.137, a governmental body must withhold the e-mail address of a member of the general public, unless the individual to whom the e-mail address belongs has affirmatively consented to its public disclosure. See Gov't Code § 552.137(b). You do not inform us that a member of the public has affirmatively consented to the release of any of the e-mail addresses we have marked in the remaining information. The department must, therefore, withhold these e-mail addresses under section 552.137. Section 552.147 of the Government Code provides "[t]he social security number of a living person is excepted from" required public disclosure under the Act." (3) Therefore, the department must withhold the social security numbers we have marked under section 552.147 of the Government Code. Finally, we note that some of the submitted information is protected by copyright. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Attorney General Opinion JM-672 (1987). A governmental body must allow inspection of materials that are subject to copyright protection unless an exception applies to the information. Id. If a member of the public wishes to make copies of copyrighted materials, the person 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 (1990). In summary, the department must withhold the information we have marked under section 151.606(a) of the Finance Code in conjunction with section 552.101 of the Government Code, unless the information is subject to section 151.606(c)(1) of the Finance Code. The department must also withhold the information we have marked under sections 552.136, 552.137, and 552.147 of the Government Code. The remaining submitted information must be released to the requestor, but any information protected by copyright must be released in accordance with copyright law. 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. 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, Tamara L. Harswick Assistant Attorney General Open Records Division TLH/jww Ref: ID# 269547 Enc. Submitted documents c: Mr. Michael B. Maledon Attorney at Law 1550 East Missouri Avenue, Suite 300 Phoenix, Arizona 85014 (w/o enclosures) Mr. Donald T. Rave 11 The Plaza Locust Valley, New York 11560 (w/o enclosures)
1. The six factors that the Restatement gives as indicia of whether information constitutes a trade secret
are: (1) the extent to which the information is known outside of [the company]; (2) the extent to
which it is known by employees and others 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).
2. The Office of the Attorney General will raise a mandatory exception like section 552.136 on behalf
of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481
(1987), 480 (1987), 470 (1987).
3. We note that section 552.147(b) of the Government Code authorizes a governmental body to redact
a living person's social security number from public release without the necessity of requesting a decision from
this office under the Act. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |