 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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December 5, 2007 Ms. Lesli R. Barber OR2007-16012 Dear Ms. Barber: 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# 296530. The Texas General Land Office (the "GLO") received a request for "a copy of the unsuccessful bids submitted under GLO RFP No. 70777-DF for the operations and management of the Ussery-Roan Texas State Veterans Home in Amarillo, Texas." You make no arguments and take no position as to whether the submitted information is excepted from disclosure. Instead, you state that the release of the submitted information may implicate the proprietary interests of Sears Methodist Retirement System, Inc. ("SMRS") and have notified it in accordance with section 552.305. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in the Act in certain circumstances). We have considered the submitted arguments and reviewed the submitted information. Initially, you note that a portion of the requested information was the subject of a previous request for information, in response to which this office issued Open Records Letter No. 2007-06075 (2007). With regard to information in the current request that is identical to the information previously requested and ruled upon by this office, we conclude that, as we have no indication that the law, facts, and circumstances on which the prior ruling was based has changed, the GLO must continue to rely on this ruling as a previous determination and withhold or release this information in accordance with Open Records Letter No. 2007-06075. See Open Records Decision No. 673 (2001) (so long as law, facts, and circumstances on which prior ruling was based have not changed, first type of previous determination exists where requested information is precisely same information as was addressed in prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure). SMRS claims that a portion of the submitted information is excepted from disclosure under section 552.110 of the Government Code. Section552.110 protects: (1) trade secrets, and (2) commercial or financial information the disclosure of which would cause substantial competitive harm to the person from whom the information was obtained. See Gov't Code § 552.110 (a)-(b). A "trade secret" may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives [one] 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, as for example the amount or other terms of a secret bid for a contract or the salary of certain employees . . . . A trade secret is a process or device for continuous use in the operation of the business. Generally it relates to the production of goods, as for example, a machine or formula for the production of an article. It may, however, 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); see also Hyde Corp. v. Huffines, 314 S.W.2d763, 776 (Tex.); Open Records Decision Nos. 552 at 2 (1990), 255 (1980), 232 (1979), 217 (1978). There are six factors to be assessed in determining whether information qualifies as a trade secret: (1) the extent to which the information is known outside of [the company's] business; (2) the extent to which it is known by employees and others involved in [the company's] business; (3) the extent of measures taken by [the company] to guard the secrecy of the information; (4) the value of the information to [the company] and to [its] competitors; (5) the amount of effort or money expended by [the company] in developing this information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Restatement of Torts § 757 cmt. b; see also Open Records Decision Nos. 319 (1982), 306 (1982), 255, 232. This office must accept a claim that information subject to the Act is excepted as a trade secret if a prima facie case for exemption is made and no argument is submitted that rebuts the claim as a matter of law. ORD 552. However, we cannot conclude that section 552.110 (a) is applicable unless it has been shown that the information meets the definition of a trade secret and the necessary factors have been demonstrated to establish a trade secret claim. Open Records Decision No. 402 (1983). 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); Open Records Decision No. 661 (1999). SMRS asserts that specified information contained in their submitted proposal constitutes trade secrets under section 552.110(a). After reviewing the arguments and the information at issue, we find that SMRS has failed to demonstrate that any portion of the information at issue meets the definition of a trade secret. See ORD 552 at 5-6; see also Restatement of Torts § 757 cmt. b (1939) (information is generally not trade secret if it is "simply information as to single or ephemeral events in the conduct of the business" rather than "a process or device for continuous use in the operation of the business") SMRS also asserts that portions of the submitted information constitutes commercial or financial information that, if released, would cause substantial competitve harm. Upon review, we determine that SMRS has demonstrated, based on a specific or factual evidentiary showing, that the release of some of its information would result in substantial competitive harm to the company. Accordingly, the financial statements and pricing information we have marked must be withheld under section 552.110(b). However, with respect to SMRS's remaining information at issue, we determine that it has failed to demonstrate, based on a specific factual or evidentiary showing, that release of the remaining information at issue would cause it substantial competitive harm. Accordingly, no part of SMRS's remaining information at issue may be withheld on this basis. In summary, the GLO must withhold and release portions of the requested information in accordance with this office's ruling in Open Records Letter No. 2007-06075. The GLO must withhold the information we have marked under section 552.110(b) of the Government Code. As no other exceptions are raised against disclosure, the remaining submitted information must be released. 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, Debbie K. Lee Assistant Attorney General Open Records Division DKL/eeg Ref: ID# 296530 Enc. Submitted documents c: Mr. Blakely Latham Fernandez Loeffler Tuggey Pauerstein Rosenthal LLP 755 East Mulberry, Suite 200 San Antonio, Texas 78212 (w/o enclosures) Mr. Jeffrey S. Boyd Thompson & Knight LLP 1900 San Jacinto Center 98 San Jacinto Boulevard Austin, Texas 78701 (w/o enclosures)
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