 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 22, 2008 Ms. Sharon Alexander Associate General Counsel Texas Department of Transportation 125 East 11th Street Austin, Texas 78701-2483 OR2008-00969 Dear Ms. Alexander: 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# 303499. The Texas Department of Transportation ("TxDOT") received a request for information pertaining to several specified companies and individuals. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.128 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we note that you have only submitted information pertaining to an application by D.M. Dukes and Associates, Inc. for historically underutilized or disadvantaged business certification. To the extent any additional responsive information existed when the department received the request for information, we assume that you have released it to the requestor. If not, then you must do so immediately. See Gov't Code §§ 552.006, 552.301, 552.302; Open Records Decision No. 664 (2000). You assert the submitted information is excepted under section 552.128 of the Government Code, which provides the following: (a) Information submitted by a potential vendor or contractor to a governmental body in connection with an application for certification as a historically underutilized or disadvantaged business under a local, state, or federal certification program is excepted from the requirements of Section 552.021, except as provided by this section. (b) Notwithstanding Section 552.007 and except as provided by Subsection (c), the information may be disclosed only: (1) to a state or local governmental entity in this state, and the state or local governmental entity may use the information only: (A) for purposes related to verifying an applicant's status as a historically underutilized or disadvantaged business; or (B) for the purpose of conducting a study of a public purchasing program established under state law for historically underutilized or disadvantaged businesses; or (2) with the express written permission of the applicant or the applicant's agent. (c) Information submitted by a vendor or contractor or a potential vendor or contractor to a governmental body in connection with a specific proposed contractual relationship, a specific contract, or an application to be placed on a bidders list, including information that may also have been submitted in connection with an application for certification as a historically underutilized or disadvantaged business, is subject to required disclosure, excepted from required disclosure, or confidential in accordance with other law. Gov't Code § 552.128. You assert that the submitted information "was submitted to TxDOT in connection with an application for certification as a DBE under TxDOT's DBE program and the Texas Unified Certification Program." You further state that the requestor is not a governmental entity and that TxDOT does not have express written permission from the applicant to release the information. Finally, you assert that "[t]he information was not submitted to TxDOT in connection with a specific proposed contractual relationship." Based on these representations, we agree that TxDOT must withhold the submitted information under section 552.128 of the Government Code. (1) 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, James L. Coggeshall Assistant Attorney General Open Records Division JLC/jh Ref: ID# 303499 Enc. Submitted documents c: Ms. Rose Tamez 1720 Timberwood Drive Austin, Texas 78701 (w/o enclosures) Footnotes1. As our ruling is dispositive, we do not address your other arguments to withhold the submitted information.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |