November 9, 2007

Ms. Sharon Alexander
Associate General Counsel
Texas Department of Transportation
125 East 11^th Street
Austin, Texas 78701-2483

OR2007-14776

Dear Ms. Alexander :

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 293012.

The Texas Department of Transportation (the "department") received a request for information related to solicitation number B442007005563000 for the marketing, sale, and design of specialty license plates, including documents between the department and Texas Senator Bob Deuell or any person in his office or on his staff, including Todd Gallaher. The department states it has released some of the information but asserts the remainder is excepted from disclosure under sections 552.104, 552.106, 552.107, and 552.111 of the Government Code. We have considered the department's arguments and have reviewed the submitted sample of information. ⁽¹⁾ We also received and considered comments from My Plates, Inc. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released).

Initially, we note that information submitted as Exhibit E is not responsive to the request because it consists of documents between the department and two legislators not named in the request. Information that is not responsive to this request need not be released, and we do not address Exhibit E in this ruling.

Section 552.104 of the Government Code 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 executed. Open Records Decision Nos. 306 (1982), 184 (1978). The department explains Exhibits B, D, and a portion of Exhibit C pertain to competitive bidding situations in which the contracts have not been awarded and their release would undermine the department's interests in the bidding process. Thus, we conclude the department may withhold Exhibits B, D, and the marked portion of Exhibit C under section 552.104.

Next, you assert that the remaining portion of Exhibit C is excepted from disclosure under the deliberative process privilege encompassed by section 552.111. See Open Records Decision No. 615 at 2 (1993). The purpose of section 552.111 is to protect advice, opinion, and recommendation in the decisional process and to encourage open and frank discussion in the deliberative process. See Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.--San Antonio 1982, no writ); Open Records Decision No. 538 at 1-2 (1990).

In Open Records Decision No. 615 (1993), this office re-examined the statutory predecessor to section 552.111 in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ). We determined that section 552.111 excepts from disclosure only those internal communications that consist of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. See Open Records Decision No. 615 at 5. This office has also concluded that a preliminary draft of a document that is intended for public release in its final form necessarily represents the drafter's advice, opinion, and recommendation with regard to the form and content of the final document, so as to be excepted from disclosure under section 552.111. See Open Records Decision No. 559 at 2 (1990) (applying statutory predecessor). Section 552.111 protects factual information in the draft that also will be included in the final version of the document. See id. at 2-3. Thus, section 552.111 encompasses the entire contents, including comments, underlining, deletions, and proofreading marks, of a preliminary draft of a policymaking document that will be released to the public in its final form. See id. at 2.

You assert that Exhibit C consists of a draft document pertaining to department policy. Based on your representations and our review, we find that you have established that the deliberative process privilege is applicable to the remaining information in Exhibit C and it may be withheld under section 552.111.

In summary, you may withhold Exhibits B, D and the marked portion of Exhibit C under section 552.104 of the Government Code. You may withhold the remaining portion of Exhibit C under section 552.111. Because our determination on these exhibits is dispositive, we do not address the department's or My Place Inc.'s other assertions.

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,

Justin Gordon

Assistant Attorney General

Open Records Division

JDG/jh

Ref: ID# 293012

Enc: Submitted documents

c: Mr. Merling Blanco

2929 Dunvale, Apt. 351

Houston, Texas 77063

(w/o enclosures)

Ms. Deborah H. Loomis

Sedgwick, Detert, Moran & Arnold LLP

919 Congress Avenue, Suite 1250

Austin, Texas 78701-3656

(w/o enclosures)

Footnotes

1. 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.

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer