October 3, 2008

Ms. Susan Camp-Lee

Sheets & Crossfield, P. C.

309 East Main Street

Round Rock, Texas 78664-5246

OR2008-13610

Dear Ms. Camp-Lee:

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# 325659.

The City of Round Rock (the "city"), which you represent, received a request for proposals submitted in response to RFP No. 08-023 (strategic planning and facilitation services) for the following companies: Analytica; Breckenridge Institute ("Breckinridge"); Collective Impact ("Collective"); Evergreen Solutions ("Evergreen"); Innes Strategy and Alliance for Innovation("Innes"); JGS Performance Solutions ("JGS"); M3 Planning; Management Partners; and Superb Speakers. You inform us that Analytica does not object to the release of its information and that, therefore, Analytica's information has been released. You also do not take a position as to whether the submitted information is excepted under the Act; however, you state, and provide documentation showing, that you notified the remaining interested third parties of the city's receipt of the request for information and of the right of each to submit arguments to this office as to why the requested information should not be released to the requestor. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 at 3 (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). Superb Speaker and M3 Planning object to the release of the some of their information. We have reviewed the submitted comments and responsive information.

An interested third party is allowed ten business days after the date of its receipt of the governmental body's notice under section 552.305(d) to submit its reasons, if any, as to why requested information relating to it should be withheld from disclosure. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, Breckenridge, Collective, Evergreen, Innes, JGS, and Management Partners have not submitted to this office any reasons explaining why the requested information should not be released. We thus have no basis for concluding that any portion of the submitted information constitutes proprietary information of these companies, and the city may not withhold any portion of the submitted information on that basis. See Open Records Decision Nos. 661 at 5-6 (1999) (to prevent disclosure of commercial or financial information, party must show by specific factual evidence, not conclusory or generalized allegations, that release of requested information would cause that party substantial competitive harm), 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3.

We understand M3 Planning and Superb Speakers object to the release of some of their information under section 552.110 of the Government Code. Section 552.110 protects the proprietary interests of private parties by excepting from disclosure two types of information: trade secrets and commercial or financial information the release of which would cause a third party substantial competitive harm. Section 552.110(a) of the Government Code excepts from disclosure "[a] trade secret obtained from a person and privileged or confidential by statute or judicial decision." The Texas Supreme Court has adopted the definition of trade secret from section 757 of the Restatement of Torts. Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex. 1958); see also Open Records Decision No. 552 at 2 (1990). Section 757 provides that a trade secret is

any formula, pattern, device or compilation of information which is used in one's business, and which gives him 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. . . . A trade secret is a process or device for continuous use in the operation of the business. . . . [It may] 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 Huffines, 314 S.W.2d at 776. In determining whether particular information constitutes a trade secret, this office considers the Restatement's definition of trade secret as well as the Restatement's list of six trade secret factors. ⁽¹⁾ Restatement of Torts § 757 cmt. b. This office has held that if a governmental body takes no position with regard to the application of the trade secret branch of section 552.110 to requested information, we must accept a private person's claim for exception as valid under that branch if that person establishes a prima facie case for exception and no argument is submitted that rebuts the claim as a matter of law. ORD 552 at 5-6. However, we cannot conclude that section 552.110(a) applies 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. See Open Records Decision No. 402 (1983).

Section 552.110(b) excepts from disclosure "[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." Section 552.110(b) requires a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from release of the requested information. See ORD 661 at 5-6 (business enterprise must show by specific factual evidence that release of information would cause it substantial competitive harm).

We agree that the release of Superb Speaker's pricing information would cause that company substantial competitive injury; therefore, the city must withhold this information, which we have marked, under section 552.110(b). However, Superb Speaker has not established that its timeline is protected under section 552.110(b). M3 Planning has not provided any arguments to establish that release of pages 5-12 of its information would cause it substantial competitive injury, or specific factual or evidentiary showing to support such allegations. M3 Planning has also failed to establish a prima facie case that these pages contain trade secrets. See ORD 402. Thus, the city may not withhold any of the remaining information under section 552.110.

Finally, we note that some of the materials at issue may be protected by copyright. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Attorney General Opinion JM-672 (1987). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id. If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 (1990).

To conclude, the city must withhold the information we have marked under section 552.110 of the Government Code. The city must release the remaining information, but any copyrighted information may only be released in accordance with copyright law.

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,

James L. Coggeshall

Assistant Attorney General

Open Records Division

JLC/ma

Ref: ID# 325659

Enc. Submitted documents

c: Ms. Rachel Barnes

Weidner Inc.

611 South Congress Avenue, Suite 430

Austin, Texas 78704

(w/o enclosures)

Mr. Mark Bodnarczuk

Breckenridge Institute

P.O. Box 7950

Boulder, Colorado 80306-7950

(w/o enclosures)

Mr. Bruce E. Decker

Collective Impact

P.O. Box 148

Rochester, Pennsylvania 15074

(w/o enclosures)

Dr. Linda Recio

Evergreen Solutions

2852 Remington Green Circle, Suite 101

Tallahassee, Florida 32308

(w/o enclosures)

Mr. Greg Innes

Innes Strategy and Alliance for Innovation

c/o Ms. Susan Camp-Lee

Sheets & Crossfield, P. C.

309 East Main Street

Round Rock, Texas 78664-5246

(w/o enclosures)

Mr. Sam Ireland and Mr. Greg Barr

JGS Performance Solutions

8916 Seven Locks Road

Bethesda, Maryland 20817

(w/o enclosures)

Ms. Nancy D. Olsen

M3 Planning

465 Court Street

Reno, Nevada 89501

(w/o enclosures)

Mr. Gerald E. Newfarmer

Management Partners

1730 Madison Road

Cincinnati, Ohio 45206

(w/o enclosures)

Ms. Joyce Scott

Superb Speakers

12407 Mopac Expressway North, #100-199

Austin, Texas 78758-2429

(w/o enclosures)

Footnotes

1. The following are the six factors that the Restatement gives as indicia of whether information constitutes a trade secret: (1) the extent to which the information is known outside of the company; (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 its competitors; (5) the amount of effort or money expended by the company in developing the information; (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 at 2 (1982), 306 at 2 (1982), 255 at 2 (1980).

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