 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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November 1, 2007 Mr. James M. Frazier III OR2007-14359 Dear Mr. Frazier: 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# 293483. The Texas Department of Criminal Justice (the "department") received a request for information relating to a request for proposals for an in-prison therapeutic community. You claim that the requested information is excepted from disclosure under section 552.104 of the Government Code. You also believe that this request for information implicates the proprietary interests of third parties. Pursuant to section 552.305 of the Government Code, you notified the interested parties of this request for information and of their right to submit arguments to this office as to why the requested information should not be released. (1) We received correspondence from Community Education Centers, Inc. and Gateway Foundation, Inc. (2) We have considered all of the submitted arguments and have reviewed the information you submitted. Section 552.104 of the Government Code excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't Code § 552.104(a). This exception protects a governmental body's interests in competitive bidding situations. See Open Records Decision No. 592 (1991). 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. See Open Records Decision No. 541 at 4 (1990). Section 552.104 does not protect information relating to competitive bidding once a contract has been awarded and is in effect. See Open Records Decision Nos. 306 (1982), 184 (1978). You state that the submitted information is related to a competitive bidding process that has yet to result in the selection of a winning bidder. You argue that release of the information in question at this time would adversely affect the competitive process itself and the department's interest in obtaining the best bargain from the competition. Based on your representations, we conclude that the department may withhold the submitted information in its entirety at this time under section 552.104 of the Government Code. (3) We note that the department may no longer withhold the information on this basis once the related contract has been executed and is in effect. 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, James W. Morris, III Assistant Attorney General Open Records Division JWM/ma Ref: ID# 293483 Enc: Submitted documents c: Ms. Denise Hicks Cenikor Foundation, Inc. 7676 Hillmont Street, Suite 190 Houston, Texas 77040 (w/o enclosures) Ms. Paula Jones Community Education Centers, Inc. 100 Locke Drive Marlborough, Massachusetts 01752 (w/o enclosures) Mr. Terrence White David and Ivory Ministries 4728 Gunter Street Houston, Texas 77020 (w/o enclosures) Mr. Gary S. Salit Gateway Foundation, Inc. 55 East Jackson Blvd. Suite 1500 Chicago, Illinois 60604 (w/o enclosures) Mr. Monty Mueller Phoenix House of Texas, Inc. 2345 Reagan Street Dallas, Texas 75219 (w/o enclosures) Mr. Charles Scherzer The Turning Point, Inc. P.O. Box 771236 Houston, Texas 77215-1236 (w/o enclosures) Mr. Shawn Jenkins, Sr. WestCare California P.O. Box 12107 Fresno, California 93776 (w/o enclosures) Footnotes1. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (statutory predecessor to Gov't Code § 552.305 permitted governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under certain circumstances). 2. The other parties that received notice under section 552.305 are David and Ivory Ministries, Phoenix House of Texas, Inc., The Turning Point, Inc., and WestCare California. 3. As we are able to make this determination, we need not address the other submitted arguments against disclosure.
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