February 22, 2008

Mr. James Downes

Assistant County Attorney

Harris County

2525 Holly Hall, Suite 190

Houston, Texas 77054

OR2008-02420

Dear Mr. Downes:

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# 302775. We note that you have identified this request as number 07HSP1038.

Harris County (the "county") received two requests from two different requestors for information pertaining to the county Hospital District's contracts with Sodexho Services of Texas, LLP ("Sodexho"). The first request, received November 26, 2007, seeks specified linen processing and food and nutrition contracts. The second request, received November 28, 2007, seeks all contracts with Sodexho. The county takes no position on whether the requested information is excepted from disclosure, but you state that release of this information may implicate the proprietary interests of Sodexho. Accordingly, you inform us, and provide documentation showing, that you notified Sodexho of the request and of its right to submit arguments to this office as to why its information should not be released. See Gov't Code § 552.305(d) (permitting interested third party to submit to attorney general reasons why requested information should not be released); see also Open Records Decision No. 542 (1990) (determining that statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure in certain circumstances). We have reviewed the submitted information.

Initially, we must address the county's obligations under section 552.301 of the Government Code, which prescribes the procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301(b), a governmental body must ask for a decision from this office and state the exceptions that apply within ten business days of receiving the written request. The commission received the first request for information on November 26, 2007 but did not request a ruling from this office until December 11, 2007. Thus, because the request for a ruling was not submitted by the ten business-day deadline the commission failed to comply with the requirement mandated by section 552.301(b).

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the requirements of section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.-- Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302); Open Records Decision No. 319 (1982). A compelling reason exists when third-party interests are at stake or when information is confidential under other law. Open Records Decision No. 150 (1977). Because a third party interest is at stake, we will address whether the submitted information must be withheld to protect the interests of the third party.

Next, we note that the housekeeping contract responsive to the November 28, 2007 request was previously ruled upon by this office in Open Records Letter No. 2007-08472 (2007). In that ruling, we concluded that the county must withhold a portion of the housekeeping contract under section 552.136 of the Government Code. Because we have no indication that the law, facts, and circumstances surrounding this prior ruling have changed, the county may continue to rely on Open Records Letter No. 2007-08472 as a previous determination, and withhold portions of the housekeeping contract while releasing the remaining portion, in accordance with that ruling. See Open Records Decision No. 673 (2001) (so long as law, facts, 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 a prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure).

With respect to the linen processing and food and nutrition contracts that were not at issue in Open Records Letter No. 2007-08472, we note that an interested third party is allowed ten business days after the date of its receipt of a governmental body's notice under section 552.305(d) of the Government Code to submit its reasons, if any, as to why requested information relating to that party should be withheld from disclosure. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, Sodexho has not submitted comments to this office explaining why any portion of its remaining information should not be released to the requestor. Thus, we have no basis to conclude that the release of any portion of the remaining information would implicate Sodexho's proprietary interests. See id. § 552.110; Open Records Decision Nos. 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 661 at 5-6 (1999) (stating that business enterprise that claims exception for commercial or financial information under section 552.110(b) must show by specific factual evidence that release of requested information would cause that party substantial competitive harm). Accordingly, we conclude that the county may not withhold any portion of the linen processing and food and nutrition contracts based on the proprietary interests of Sodexho. As no other exception to disclosure of this information is raised, this information must be released to the requestor.

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 D. Gordon

Assistant Attorney General

Open Records Division

JDG/eeg

Ref: ID# 302775

Enc. Submitted documents

c: Mr. Jay Carciero

52 Munroe Avenue

Reading, Massachusetts 01867

(w/o enclosures)

Mr. John Huheey

958 Independence Drive

Kettering, Ohio 45429

(w/o enclosures)

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