 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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December 5, 2007 Ms. Karen Rabon OR2007-16010 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# 297635. The Office of the Attorney General (the "OAG") received three requests for the reports and deliverables submitted by Deloitte Consulting, L.L.P. ("Deloitte") for the Child Support Division's Business Process Redesign project. The OAG states it has released most of the information but argues some of the remaining information is excepted from disclosure under section 552.104 of the Government Code. The OAG has also notified Deloitte of the request for information because it may implicate Deloitte's proprietary interest. Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Open Records Act in certain circumstances). We have considered the OAG's claimed exception and have reviewed the submitted sample of information. (1) Section 552.104 excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't Code § 552.104. 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 OAG explains the three pages it marked consist of hour and cost projections for various phases of the implementation of a Business Process Redesign. Furthermore, the OAG states when it decides which recommendations to adopt, it will seek competitive bids for the various projects involved in implementing those changes. The OAG asserts release of the information would prevent it from receiving the most favorable offers from vendors, who could use the information to tailor their bids based on Deloitte's hour and cost estimates. Based on these representations, we conclude the OAG has shown actual or specific harm in a particular competitive situation were the information to be released. Thus, the OAG may withhold the pages it marked under section 552.104. As for the remainder of Exhibits B - D, Deloitte did not submit arguments in response to the section 552.305 notice. Therefore, we have no basis to conclude that the remaining information is excepted from disclosure, and the OAG must release it to the requestor. See Open Records Decision Nos. 639 at 4 (1996) (to prevent disclosure of commercial or financial information, party must show by specific factual or evidentiary material, not conclusory or generalized allegations, that it actually faces competition and that substantial competitive injury would likely result from disclosure), 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990). 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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, 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 challenge 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# 297635 Enc: Submitted documents c: Ms. Adrienne O'Keefe Bates Investigations, Inc. 4131 Spicewood Springs Road, #J2 Austin, Texas 78759 (w/o enclosures) Mr. Edward Stith Strategic Partnerships, Inc. 6034 West Courtyard Drive, Suite 100 Austin, Texas 78730 (w/o enclosures) Mr. Julio C. Massad Sierra Systems 901 South Mopac Expressway Building 3, Suite 130 Austin, Texas 78746 (w/o enclosures) Mr. Jeff Bradfield Deloitte Consulting, L.L.P. 4333 West Washington Avenue Madison, Wisconsin 53703 (w/o enclosures) Footnotes1. 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.
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