 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 6, 2010 Mr. Vic Ramirez Associate General Counsel Lower Colorado River Authority P.O. Box 220 Austin, Texas 78767-0220 OR2010-00227 Dear Mr. Ramirez: 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# 366767. The Lower Colorado River Authority (the "LCRA") received a request for the following information pertaining to the LCRA's 2008 fiscal year: (1) specific revenue and cost data regarding "water services components," (2) contribution amounts to the Public Service Fund, and (3) five categories of information regarding wholesale power customers. You state you have released some of the requested information to the requestor. You claim that the submitted information is excepted from disclosure under section 552.133 of the Government Code. You also state that release of the submitted information may implicate the proprietary interests of interested third parties. Accordingly, you state, and provide documentation showing, you have notified the interested third parties of this request and of their right to submit arguments to this office as to why the submitted information should not be released. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permitted governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under certain circumstances). We have received comments from the following interested third parties: Bluebonnet Electric Cooperative, Fayette Electric Cooperative, Inc., Kerrville Public Utility Board, the City of Seguin, and the Hamilton County Electric Cooperative Association. We have considered the submitted arguments and reviewed the submitted representative sample of information. (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 [required public disclosure] 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). A "competitive matter" is defined 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) lists thirteen categories of information that may not be deemed competitive matters. See id. The attorney general may conclude that section 552.133 is inapplicable to the requested information only if, based on the information provided, the attorney general determines that the public power utility governing body has not acted in good faith in determining that the issue, matter, or activity is a competitive matter or that the information requested is not reasonably related to a competitive matter. See id. § 552.133(c). We understand the LCRA is the governing body of a public power utility. You have submitted a copy of the LCRA Board's Policy 103 and Policy 202, which delineate categories of information that the Board has, by vote as we understand, determined to be competitive matters for purposes of section 552.133. You assert the submitted information falls within the categories of the LCRA's competitive matters and, therefore, is protected from public disclosure under section 552.133. We have no reason to conclude the LCRA failed to act in good faith in determining this particular matter to be competitive. Furthermore, we conclude this information is reasonably related to a competitive matter as defined by the LCRA's competitive matters policy and the submitted information is not among the thirteen categories of information that section 552.133(a)(3) expressly excludes from the definition of competitive matter. See id. § 552.133(a)(3). Therefore, based on your representations and our review, we conclude the submitted information is excepted from disclosure by section 552.133 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, Christina Alvarado Assistant Attorney General Open Records Division CA/rl Ref: ID# 366767 Enc. Submitted documents cc: Requestor (w/o enclosures) Mr. Michael Simmang General Counsel Bluebonnet Electric Cooperative P.O. Box 729 Bastrop, Texas 78602 (w/o enclosures) Mr. Thomas K. Anson Counsel for Fayette Electric Cooperative, Inc. Strasburger & Price, L.L.P. 600 Congress Avenue, Suite 1600 Austin, Texas 78701-2974 (w/o enclosures) Mr. R. Gaines Griffin Law Offices of Davison & Troilo 7550 West IH-10, Suite 800 San Antonio, Texas 78229-5815 (w/o enclosures) Mr. Ross Fischer Seguin City Attorney Denton, Navarro, Rocha & Bernal 2517 North Main Avenue San Antonio, Texas 78212 (w/o enclosures) Mr. Edward D. Burbach Gardere, Wynne, Sewell, L.L.P. 600 Congress Avenue, Suite 3000 Austin, Texas 78701-2978 (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.
2. As our ruling is dispositive, we need not address the third parties' arguments.
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