January 4, 2010

Ms. YuShan Chang

Assistant City Attorney

City of Houston

P.O. Box 368

Houston, Texas 77001

OR2010-00065

Dear Ms. Chang:

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# 364514.

The City of Houston (the "city") received a request for all completed winning notices and sales receipts pertaining to city lots sold at auction between July 1, 2009 and September 21, 2009. You claim some of the highlighted information is subject to a previous determination by this office, and that the remaining highlighted information is excepted from disclosure under section 552.137 of the Government Code. You also assert that the release of the highlighted information may implicate the proprietary interests of The Public Group, L.L.C. d/b/a Public Surplus ("Public Surplus"). You have notified Public Surplus of the city's receipt of the request for information and of its right to submit arguments to this office as to why the information at issue should not be released. See Gov't Code § 552.305(d); 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 considered the submitted arguments and reviewed the submitted representative sample of information. ⁽¹⁾

You claim the highlighted name, telephone number, and address information is the subject of a previous request for information in response to which this office issued Open Records Letter No. 2009-11945 (2009). Although you seek to rely on this decision as a previous determination, the information at issue in Open Records Letter No. 2009-11945 pertained to seven specified bidders whose information has not been submitted in this instance. Thus, because the information at issue is not precisely the same, Open Records Letter No. 2009-11945 cannot be relied on as a previous determination. C.f. Open Records Decision No. 673 (2001) (so long as law, facts, and 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 prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure).

We next address Public Surplus' contention that the requested bidder information is not subject to the Act. The Act is applicable to "public information." See Gov't Code § 552.021. Section 552.002 of the Act provides that "public information" consists of information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business:

(1) by a governmental body; or

(2) for a governmental body and the governmental body owns the information or has a right of access to it.

Id. § 552.002(a) (emphasis added). Thus, virtually all of the information that is in a governmental body's physical possession constitutes public information that is subject to the Act. Id. § 552.022(a)(1); see also Open Records Decision Nos. 549 at 4 (1990), 514 at 1-2 (1988). The Act also applies to information that a governmental body does not physically possess, if the information is collected, assembled, or maintained for a governmental body, and the governmental body owns the information or has a right of access to it. Gov't Code § 552.002(a)(2). Thus, information that is collected, assembled, or maintained by a third party may be subject to disclosure under the Act if a governmental body owns or has a right of access to the information. See Open Records Decision No. 462 (1987).

Public Surplus acknowledges the city has a right of access to certain bidder information "for the purpose of evaluating the likelihood of performance by a particular bidder and consummating the purchase with a winning bidder." Thus, although certain bidder information may well be created or held by Public Surplus for its own purposes, this information has also been provided to the city by Public Surplus for the city's use of the online auction system. As the city is provided such bidder information for its use of the online auction system, we conclude that the city has a right of access to such information. See Gov't Code § 552.002(a)(2). Further, the submitted information is in the possession of the city, which is a governmental body as defined by section 552.003, and was collected and maintained in connection with the transaction of the city's official business. Thus, such information constitutes public information under section 552.002(a). Id. We therefore conclude that the submitted information is subject to the Act and must be released, unless it falls within the scope of an exception to disclosure. See Gov't Code §§ 552.002(a), .021.

Public Surplus contends the requested bidder information is subject to section 552.110(b) of the Government Code. Section 552.110(b) protects "[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[.]" Id. § 552.110(b). This exception to disclosure requires a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from release of the information at issue. Id.; see also Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974); Open Records Decision 661 at 5-6 (1999).

Public Surplus asserts the bidder information at issue, consisting of a bidder's name, e-mail address, telephone number, and address, is "key to Public Surplus' competitive advantage" and that "Public Surplus has compiled the data over years of its operation and at expense in the millions of dollars." Public Surplus further asserts that release of the information at issue "would cause [it] substantial competitive harm[,]" by allowing others to "approach those bidders and significantly reduce or undercut the market for similar or other surplus goods sold on Public Surplus' site." Having considered the submitted arguments and reviewed the information at issue, we conclude Public Surplus has established the release of the requested bidder identification and contact information would cause it substantial competitive injury; therefore, the city must withhold the information you highlighted under section 552.110(b) of the Government Code. ⁽²⁾

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, toll free, at (888) 672-6787.

Sincerely,

Bob Davis

Assistant Attorney General

Open Records Division

RSD/cc

Ref: ID# 364514

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

2. As our ruling is dispositive, we need not address the remaining arguments against disclosure of this information.

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