March 20, 2008

Ms. Lila Fuller

City Secretary

City of Nacogdoches

P.O. Drawer 635030

Nacogdoches, Texas 75963

OR2008-03685

Dear Ms. Fuller:

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# 305185.

The City of Nacogdoches (the "city") received a request for information relating to a request for proposals ("RFP") for a community wireless broadband network, including the bidders' proposals, bid summaries, and evaluations. You inform us that there are no responsive bid summaries or evaluations. ⁽¹⁾ You claim that the submitted proposals are excepted from disclosure under section 552.104 of the Government Code. You also believe that the submitted information may implicate the interests of third parties. You notified the interested parties of this request for information and of their right to submit arguments to this office as to why the information should not be released. ⁽²⁾ We received correspondence from Scientel Wireless, LLC. We have considered all of the submitted arguments and have reviewed the submitted information.

Section 552.104 of the Government Code excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't Code § 552.104(a). This exception protects a governmental body's interests in competitive bidding situations. See Open Records Decision No. 592 (1991). 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. See Open Records Decision No. 541 at 4 (1990). You state that the submitted information is related to competitive bidding. You inform us that the city is evaluating the responses to the RFP and has not yet awarded a contract. Based on your representations, we conclude that the city may withhold the submitted information in its entirety at this time under section 552.104 of the Government Code. ⁽³⁾ We note that the city may no longer withhold the information on this basis once a contract has been awarded and is in effect. See Open Records Decision Nos. 306 (1982), 184 (1978).

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 W. Morris, III

Assistant Attorney General

Open Records Division

JWM/ma

Ref: ID# 305185

Enc: Submitted documents

c: Mr. Enrique Flores

CES Network Services, Inc.

P.O. Box 810256

Dallas, Texas 75381-0256

(w/o enclosures)

Mr. Nelson C. Santos

Scientel Wireless, LLC

1007 Oak Creek Drive

Lombard, Illinois 60148

(w/o enclosures)

Mr. Ronny Johnston

Wireless Dynamics

5802 FM 2251

Lufkin, Texas 75901

(w/o enclosures)

Footnotes

1. We note that the Act does not require a governmental body to release information that did not exist when it received a request or create responsive information. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App. - San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 555 at 1 (1990), 452 at 3 (1986), 362 at 2 (1983).

2. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (statutory predecessor to Gov't Code § 552.305 permitted governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under certain circumstances).

3. As we are able to make this determination, we do not address the other submitted arguments against disclosure.

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