February 21, 2007

Mr. M .Gustave Pick
For Ysleta Independent School District
Scott, Hulse, Marshall, Feuille, Finger & Thurmond
P. O. Box 99123
El Paso, Texas 79999-9123

OR2007-02086

Dear Mr. Pick:

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# 271659.

The Ysleta Independent School District (the "district") received a request for a specific audit by Access Healthcare ("Access"). You claim that the submitted information is excepted from disclosure under section 552.107 of the Government Code. ⁽¹⁾ You also state that the submitted information may contain proprietary information, and thus, pursuant to section 552.305 of the Government Code, you have notified Access 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); 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 received correspondence from counsel for Access. We have considered all of the submitted arguments and reviewed the submitted information.

The district and Access state that Appendix A of the submitted information is the subject of an Agreed Judgment and Permanent Injunction Order. Section 552.107(2) of the Government Code excepts from required public disclosure information if "a court by order has prohibited disclosure of the information." Gov't Code § 552.107(2). The district and Access both indicate, and the submitted documents reflect, that an El Paso County district court has entered a Permanent Injunction Order prohibiting the release of Access' Network Provider Rates. Upon review, however, the court order prohibited the release of Access' Network Provider Rates in a specific document on specific pages. Since Attachment A is not that information, it is not subject to the Agreed Judgment and Permanent Injunction Order. Accordingly, the district may not withhold Attachment A under section 552.107(2) of the Government Code.

Access claims that Attachment A is excepted from public disclosure under section 552.104 of the Government Code. Section 552.104 excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't Code § 552.104. However, section 552.104 is a discretionary exception that protects only the interests of a governmental body, as distinguished from exceptions which are intended to protect the interests of third parties. See Open Records Decision Nos. 592 (1991) (statutory predecessor to section 552.104 designed to protect interests of a governmental body in a competitive situation, and not interests of private parties submitting information to the government), 522 (1989) (discretionary exceptions in general). As the district does not seek to withhold any information pursuant to section 552.104, the district may not withhold any of Attachment A pursuant to section 552.104 of the Government Code. See ORD No. 592 (governmental body may waive section 552.104).

Access claims that Attachment A is excepted from public disclosure under section 552.110(b) of the Government Code. 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. Id. § 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).

Access states that releasing Attachment A would allow a competitor to undercut Access' rates and then approach the company's clients with a more lucrative employee benefit arrangement; and thus, causing the company substantial competitive harm. After reviewing the information at issue and Access' arguments, we find that Access has demonstrated that the release of Attachment A would cause the company substantial competitive harm. Accordingly, the district must withhold Access' Attachment A under section 552.110(b) of the Government Code. ⁽²⁾

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,

Jaclyn N. Thompson

Assistant Attorney General

Open Records Division

JNT/krl

Ref: ID# 271659

Enc. Submitted documents

c: Ms. Christina Boomer

4140 Rio Bravo

El Paso, Texas 79902

(w/o enclosures)

Mr. Carlos Eduardo Cardenás

Joseph (SIB) Abraham, Jr.

3^rd Floor - Toltec Building

717 East San Antonio Street

El Paso, Texas 79901-2520

(w/enclosures)

Footnotes

1. After reviewing your arguments we understand you to assert section 552.107(2) of the Government Code.

2. As our ruling is dispositive, we need not address Access' remaining argument.

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