January 12, 2010

Mr. Kipling D. Giles

Senior Counsel

Legal Services Division

CPS Energy

P.O. Box 1771

San Antonio, Texas 78296

OR2010-00593

Dear Mr. Giles:

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# 367076.

The City Public Service Board of the City of San Antonio d/b/a CPS Energy ("CPS") received a request for the bid abstract for a custodial services contract at CPS' Nacogdoches Complex, including the bidders' names and prices. Although you take no position as to the public availability of the submitted bid tabulation, you state its release may implicate the proprietary interests of AHI Facility Services, Inc. ("AHI"), Belite Building Maintenance, L.L.C. ("Belite"), MEI Building Maintenance ("MEI"), F&C Quality Services, L.L.C. ("F&C"), Labor On Demand ("Labor"), Jani-King of San Antonio ("Jani-King"), CTJ Maintenance, Inc. ("CTJ"), Royal Kim Maintenance, Inc. ("Royal"), DKC Enterprises ("DKC"), Treco Services, Inc. ("Treco"), Cleanco of Texas ("Cleanco"), R&S Janitorial ("R&S"), Maldonado Commercial Services ("Maldonado"), L&V Janitorial Services ("L&V"), and Alamo City Cleaning Solutions ("Alamo"). Thus, pursuant to section 552.305 of the Government Code, you notified those fifteen companies of the request and of the companies' right to submit arguments to this office as to why their information should not be released. 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 under in certain circumstances). We have reviewed the submitted 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 information relating to that party should be withheld from public disclosure. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, we have not received comments from AHI, Belite, F&C, Labor, Jani-King, CTJ, Royal, DKC, Cleanco, R&S, Maldonado, L&V, or Alamo explaining why any portion of the submitted information should not be released. Therefore, we have no basis to conclude those companies have protected proprietary interests in the submitted information. See id. § 552.110; 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 (1990). Additionally, we received comments from MEI stating the company does not object to release of its information in the submitted bid tabulation. Consequently, CPS may not withhold the submitted tabulation on the basis of any proprietary interest AHI, Belite, MEI, F&C, Labor, Jani-King, CTJ, Royal, DKC, Cleanco, R&S, Maldonado, L&V, or Alamo may have in the information. However, because we received comments from Treco objecting to release of its information, we will consider that company's arguments.

Treco asserts its Monthly Amounts provided for the Transformer Shop, Substation #1, and Substation #2, as well as its Total Monthly Charges and Total Two Year Period Charges, in the submitted bid tabulation should be withheld pursuant to the section 552(b)(4) exemption of the federal Freedom of Information Act ("FOIA"). However, in Attorney General Opinion MW-95 (1979), this office determined FOIA does not apply to records held by a Texas agency or its political subdivisions. Furthermore, this office has stated in numerous opinions that information in the possession of a governmental body of the State of Texas is not confidential or excepted from disclosure merely because the same information is or would be confidential under one of FOIA's exceptions. See Open Records Decision Nos. 496 at 4 (1988), 124 at 1 (1976). The information at issue in this case is held by CPS, a governmental entity of the State of Texas. Accordingly, Treco's information may not be withheld pursuant to FOIA.

However, because exemption four is analogous to section 552.110 of the Government Code, we will address Treco's arguments under that section. 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[.]" Gov't Code § 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. § 552.110(b); see also National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974); Open Records Decision No. 661 (1999).

Treco states releasing these categories of information would allow a competitor to underbid Treco in future bidding situations, harming the company's chances at winning those awards. After reviewing the information at issue and Treco's arguments, we find Treco has demonstrated the release of its pricing information would cause the company substantial competitive harm. Accordingly, CPS must withhold Treco's Monthly Amounts provided for the Transformer Shop, Substation #1, and Substation #2, as well as its Total Monthly Charges and Total Two Year Period Charges, which we have marked, under section 552.110(b) 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,

Bob Davis

Assistant Attorney General

Open Records Division

RSD/cc

Ref: ID# 367076

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Ms. Deborah L. Trevino

President

Tresco Services, Inc.

904 North Zarzamora

San Antonio, Texas 78207-1405

(w/o enclosures)

Ms. Alice Arredondo

Operations

MEI Building Maintenence

105 Key Street

San Antonio, Texas 78201

(w/o enclosures)

Mr. Dustin Cleayinger

AHI Facility Services, Inc.

625 Yuma Court

Dallas, Texas 75208

(w/o enclosures)

Ms. Ella Boyd

Belite Building Maintenance, LLC

P.O. Box 200127

San Antonio, Texas 78220

(w/o enclosures)

Ms. Maria C. Aguilera

F & C Quality Services, LLC

134 Shady Rill

San Antonio, Texas 78213

(w/o enclosures)

Mr. Richard Tovar

Labor On Demand

851 Culebra

San Antonio, Texas 78201

(w/o enclosures)

Mr. David M. Tucker

Jani-King of San Antonio

1031 East Nakoma, Suite 102

San Antonio, Texas 78216

(w/o enclosures)

Mr. Harold Jenkins

CTJ Maintenance, Inc.

3649 Conflans Road, Suite 102

Irving, Texas 75601

(w/o enclosures)

Royal Kim Maintenance, Inc.

18231 Apache Springs

San Antonio, Texas 78259

(w/o enclosures)

DKC Enterprises

5330 Griggs Road, Suite A114

Houston, Texas 77021

(w/o enclosures)

Ms. Cosme Romero

Cleanco of Texas

7207 Remuda

San Antonio, Texas 78227

(w/o enclosures)

Ms. Shaunda Kelley

R & S Janitorial

3501 Pin Oak #517

San Antonio, Texas 78229

(w/o enclosures)

Mr. Burt Villarreal

Maldonado Commercial Services

16348 Nacogadoches Road

San Antonio, Texas 78247

(w/o enclosures)

L & V Janitorial Services

5423 South Zarzamora

San Antonio, Texas 78211

(w/o enclosures)

Alamo Cleaning Solutions

P.O. Box 23207

San Antonio, Texas 78223

(w/o enclosures)

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer