 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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October 3, 2008 Mr. W. Montgomery Meitler Assistant Counsel Office of Legal Services Texas Education Agency 1701 North Congress Avenue Austin, Texas 78701-1494 OR2008-13603 Dear Mr. Meitler: 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# 323670. The Texas Education Agency (the "agency") received two requests information related to the Generation 14 open-enrollment charter application cycle. You state, and provide documentation showing, that the second requestor narrowed the scope of his request and the agency subsequently released responsive information to the second requestor. Accordingly, you have withdrawn your request for a ruling pertaining to the second request. See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information). You claim, however, that the information responsive to the first request is excepted from disclosure under section 552.104 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information. (1) Section 552.104 excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." Id. § 552.104(a). The purpose of this exception is to protect a governmental body's interests in certain competitive 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). Section 552.104 does not protect information relating to competitive situations once a contract has been awarded. See Open Records Decision Nos. 306 (1982), 184 (1978). You inform us that the submitted information relates to competition for open-enrollment charters. You state that the agency has received 39 applications, but may only award 5 charters in addition to those that are already in force. You explain that winning an open-enrollment charter makes both state and federal funds available to the charter holder, including federal start-up funds, state aid, and federal grant funds. You state that the agency is in the evaluation and interview phase of the application process and that the available charters have yet to be awarded. You argue that release of the requested applications before the charters are awarded would adversely affect the competition for the charters, provide applicants with an unfair advantage over their competitors, and hinder the agency's ability to select the best possible applicants. Based on your representations, we conclude that the agency may withhold the submitted information at this time under section 552.104 of the Government Code. We note that the agency may no longer withhold the information on this basis once the charters have been awarded. 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). If the governmental body does not file suit over 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, Jordan Hale Assistant Attorney General Open Records Division JH/jb Ref: ID# 323670 Enc. Submitted documents c: Ms. Julia Brady Imagine International Academy of North Texas 601 Summer Hill Court McKinney, Texas 75070 (w/o enclosures)
1. 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. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |