February 22, 2007

Ms. Karen Rabon
Assistant Attorney General
Public Information Coordinator
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548

OR2007-02124

Dear Ms. Rabon:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 270923.

The Office of the Attorney General (the "OAG") received two requests for the written request for information regarding Mannatech, Inc. and the OAG's correspondence to the Open Records Division concerning that request. The OAG does not object to release of the information but has given the original requestor for the Mannatech information an opportunity to submit arguments objecting to release of some of the information. We have received and considered comments from Mr. Jeffrey S. Boyd, counsel for the original requestor, and counsel for one of the present requestors. See Gov't Code § 552.304 (interested party may submit written comments concerning availability of requested information).

Mr. Boyd asserts his clients' identifying information is protected from public disclosure under sections 552.101 and 552.110 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Under this exception, a governmental body must not disclose information if the disclosure will violate a person's constitutional or common-law rights to privacy. Industrial Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). First, the court has held that "the right of privacy is purely personal." Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex. App.--Texarkana 1979, writ ref'd n.r.e.). The privacy doctrine protects the privacy interests of individuals, not of corporations or 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); 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). Therefore, the information pertaining to the business entity may not be withheld under section 552.101 based on privacy principles.

Common-law privacy protects information if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Indus. Found. at 685. The types of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. In determining whether the release of information would be "highly objectionable to a reasonable person," we must look to the information itself, to determine whether it contains "highly intimate or embarrassing facts." After review of the information at issue, we conclude it does not meet the first prong of the Industrial Foundation test. Thus, the information is not confidential under common-law privacy.

Next, Mr. Boyd argues the identifying information of his client, the original requestor, is private under the federal and state constitutions because the person has an interest in avoiding disclosure of personal matters. This type of privacy under the federal Constitution requires a balancing between the individual's privacy interests in avoiding disclosure of one's personal information and the public's need to know information of public concern. Open Records Decision No. 455 at 4 (1987). As we stated above, his client's identifying information as found in the records at issue is not highly intimate or embarrassing information. Hence, the information is not protected by privacy under the federal Constitution.

As for the state constitution, we have interpreted, and Mr. Boyd agrees, that the right of privacy under the Texas Constitution is consistent with that right under the federal Constitution, which we have previously addressed. City of Sherman v. Henry, 928 S.W.2d 464, 473 (Tex. 1996) ("While the Texas Constitution has been recognized to possess independent vitality, separate and apart from the guarantees provided by the United States Constitution, there is no reason to expand Texas constitutional protections . . . ." (citations omitted)).

Finally, Mr. Boyd contends his clients' identifying information is protected as a trade secret under section 552.110(a). Section 552.110(a) protects the trade secrets obtained from a person and privileged or confidential by statute or judicial decision. 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). After reviewing Mr. Boyd's arguments and the information at issue, we conclude that counsel has not established a prima facie case that the information is a trade secret as defined by the Restatement of Torts. Thus, section 552.110 does not except the information from public disclosure and the OAG must release the information.

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,

Yen-Ha Le

Assistant Attorney General

Open Records Division

YHL/sdk

Ref: ID# 270923

Enc: Submitted documents