January 23, 2009

Ms. Angela M. DeLuca

Assistant City Attorney

City of Bryan

P.O. Box 1000

Bryan, Texas 77805

OR2009-00932

Dear Ms. DeLuca:

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# 332983.

The City of Bryan (the "city") received a request for (1) the current depository contract with the city's banking institution, and the bid proposal and tally sheet related to this contract; (2) the current merchant card contract; and (3) the current purchase card contract. You claim the requested information is excepted from disclosure under section 552.133 of the Government Code. We have considered the exception you claim and reviewed the submitted information, some of which is a representative sample. ⁽¹⁾

Section 552.133 of the Government code excepts from disclosure a public power utility's information related to a competitive matter. Section 552.133(b) provides:

Information or records are excepted from the requirements of Section 552.021 if the information or records are reasonably related to a competitive matter, as defined in this section. Excepted information or records include the text of any resolution of the public power utility governing body determining which issues, activities, or matters constitute competitive matters. Information or records of a municipally owned utility that are reasonably related to a competitive matter are not subject to disclosure under this chapter, whether or not, under the Utilities Code, the municipally owned utility has adopted customer choice or serves in a multiply certificated service area. This section does not limit the right of a public power utility governing body to withhold from disclosure information deemed to be within the scope of any other exception provided for in this chapter, subject to the provisions of this chapter.

Gov't Code § 552.133(b). Section 552.133(a)(3) defines a "competitive matter" as a matter the public power utility governing body in good faith determines by vote to be related to the public power utility's competitive activity, and the release of which would give an advantage to competitors or prospective competitors. See id. § 552.133(a)(3). However, section 552.133(a)(3) also provides thirteen categories of information that may not be deemed competitive matters. The attorney general may conclude section 552.133 is inapplicable to the requested information only if, based on the information provided, the attorney general determines the public power utility governing body has not acted in good faith in determining the issue, matter, or activity is a competitive matter or the information requested is not reasonably related to a competitive matter. Id. § 552.133(c).

You inform us the city "owns an electric generation and distribution system under the name BTU or Bryan Texas Utilities." You indicate, and the submitted information reflects, the requested bid proposal, tally sheet, and contracts pertain to both the city and BTU. You explain BTU is a public power utility for purposes of section 552.133. You also inform us, and provide documentation showing, the city council, as governing body of a public power utility, adopted a resolution defining "competitive matter" pursuant to section 552.133. This resolution defines, among other things, purchasing information, including bids, proposals, and contracts, to be within the scope of the term "competitive matter." The requested bid proposal, tally sheet, and contracts are not among the thirteen categories of information section 552.133(a)(3) expressly excludes from the definition of a competitive matter. Furthermore, we have no evidence the city council failed to act in good faith. See id. § 552.133(c). Accordingly, we determine the requested information relates to a competitive matter in accordance with the city council's resolution you have provided, and is, therefore, excepted from disclosure pursuant to section 552.133 of the Government Code.

This letter ruling is limited to the particular information 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 information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General at (512) 475-2497.

Sincerely,

Leah B. Wingerson

Assistant Attorney General

Open Records Division

LBW/cc

Ref: ID# 332983

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Footnotes

1. We assume 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 those records contain substantially different types of information than that submitted to this office.

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