 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 12, 2010 Mr. Robert Martinez Environmental Law Division Texas Commission on Environmental Quality P. O. Box 13087 Austin, Texas 78711-3087 OR2010-00590 Dear Mr. Martinez: 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# 367043 (TCEQ PIR No. 09.10.19.08). The Texas Commission on Environmental Quality ("TCEQ") received a request for all confidential information regarding four specified permit numbers. You claim that the submitted information is excepted from disclosure under section 552.101 of the Government Code. (1) You also explain that the submitted information may implicate the proprietary interests of a third party. Accordingly, you inform us, and provide documentation showing, that pursuant to section 552.305 of the Government Code, TCEQ has notified Exxon Mobile Corporation ("Exxon") of the request and of its right to submit arguments to this office explaining why its 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 considered the exception you claim and reviewed the submitted representative sample of information. (2) We have also considered comments submitted by Exxon. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses information made confidential by other statutes, including section 382.041 of the Health and Safety Code, which provides in part that "a member, employee, or agent of [TCEQ] may not disclose information submitted to [TCEQ] relating to secret processes or methods of manufacture or production that is identified as confidential when submitted." Health & Safety Code § 382.041(a). This office has concluded that section 382.041 protects information that is submitted to TCEQ if a prima facie case is established that the information constitutes a trade secret under the definition set forth in the Restatement of Torts and if the submitting party identified the information as being confidential when submitting it to TCEQ. See Open Records Decision No. 652 (1997). TCEQ and Exxon both state that Exxon marked the submitted documents as confidential when it provided them to TCEQ. (3) Thus, the submitted information is confidential under section 382.041 to the extent that this information constitutes a trade secret. Because section 552.110(a) of the Government Code also protects trade secrets from disclosure, we will consider the submitted arguments under section 382.041 together with the arguments under section 552.110(a). Section 552.110 of the Government Code protects the proprietary interests of private parties with respect to two types of information: (1) "[a] trade secret obtained from a person and privileged or confidential by statute or judicial decision" and (2) "commercial 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." Gov't Code § 552.110(a)-(b). The Texas Supreme Court has adopted the definition of a "trade secret" from section 757 of the Restatement of Torts, which holds a "trade secret" to be 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 a single or ephemeral event 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 Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex. 1958). This office will accept a private person's claim for exception as valid under section 552.110(a) if the person establishes a prima facie case for the exception and no one submits an argument that rebuts the claim as a matter of law. (4) Open Records Decision No. 552 at 5-6 (1990). However, we cannot conclude that section 552.110(a) is applicable unless the party claiming this exception has shown that the information at issue meets the definition of a trade secret and has demonstrated the necessary factors to establish a trade secret claim. See Open Records Decision No. 402 (1983). 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 information at issue. See Open Records Decision No. 661 at 5-6 (1999) (business enterprise must show by specific factual evidence that release of information would cause it substantial competitive harm). Based on Exxon's representations and our review of the information at issue, we agree that Exxon has established a prima facie case that the information we have marked constitutes trade secrets. However, Exxon has not established a prima facie case that any of the remaining submitted information constitutes a trade secret. See ORD 402. Furthermore, we find that Exxon has made only conclusory allegations that release of the remaining information at issue would cause the company substantial competitive injury, and has provided no specific factual or evidentiary showing to support such allegations. Accordingly, TCEQ must generally withhold the information we have marked under section 382.041 of the Health & Safety Code and section 552.110 of the Government Code, but may not withhold any of the remaining information on the basis of these sections. We note, however, that, under the federal Clean Air Act, emission data must be made available to the public, even if the data otherwise qualifies as trade secret information. See 42 U.S.C. § 7414(c). Thus, to the extent that any of the marked information constitutes emission data for the purposes of section 7414(c) of title 42 of the United States Code, TCEQ must release such information in accordance with federal law. Section 552.137 of the Government Code excepts from disclosure "an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body" unless the member of the public consents to its release or the e-mail address is of a type specifically excluded by subsection (c). (5) See Gov't Code § 552.137(a)-(c). TCEQ does not inform us that it has received consent to release the e-mail address at issue, and it does not appear that this e-mail address is of a type specifically excluded by section 552.137(c). Accordingly, TCEQ must withhold the e-mail address we have marked under section 552.137. In summary, TCEQ must withhold the information we have marked under section 382.041 of the Health & Safety Code and section 552.110(a) of the Government Code, but must release any such information that constitutes emission data for the purposes of section 7414(c) of title 42 of the United States Code. TCEQ must also withhold the e-mail address we have marked under section 552.137 of the Government Code. The remaining information must be released. 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, Sarah Casterline Assistant Attorney General Open Records Division SEC/jb Ref: ID# 367043 Enc. Submitted documents c: Requestor (w/o enclosures) Mr. Kevin Brewer Exxon Mobile Corporation P.O. Box 4004 Baytown, Texas 77522 (w/o enclosures)
1. Although TCEQ also claims that the requested information is excepted from disclosure under
section 552.305, we note that section 552.305 is not an exception to disclosure; instead, it permits a
governmental body to decline to release information for the purpose of requesting an attorney general decision
if it believes that a person's privacy or property interests may be involved. See Gov't Code § 552.305(a); Open
Records Decision No. 542 at 1-3 (1990) (discussing statutory predecessor).
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.
We note that information is ordinarily not confidential under the Act simply because the party
submitting the information anticipates or requests that it be kept confidential. See Indus. Found. v. Tex. Indus.
Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976). In other words, a governmental body cannot, through an
agreement or contract, overrule or repeal provisions of the Act. See Attorney General Opinion JM-672 (1987);
Open Records Decision Nos. 541 at 3 (1990) ("[T]he obligations of a governmental body under [the Act]
cannot be compromised simply by its decision to enter into a contract."), 203 at 1 (1978) (mere expectation of
confidentiality by person supplying information does not satisfy requirements of statutory predecessor to Gov't
Code § 552.110).
The Restatement of Torts lists the following six factors 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 (1939); see also Open Records Decision Nos. 319 at 2 (1982), 306 at 2
(1982), 255 at 2 (1980).
The Office of the Attorney General will raise a mandatory exception on behalf of a governmental
body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480
(1987), 470 (1987). We also note this office recently issued Open Records Decision No. 684 (2009), a previous
determination to all governmental bodies authorizing them to withhold ten categories of information, including
an e-mail address of a member of the public under section 552.137 of the Government Code, without the
necessity of requesting an attorney general decision. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |