February 1, 2010

Mr. Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

P.O. Box 12157

Austin, Texas 78711

OR2010-01493

Dear Mr. Bowman:

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# 369016 (TDLR ID# 5928).

The Texas Department of Licensing and Regulation (the "department") received a request for specified core curriculum, to include student handouts and instructor manuals. Although you believe that the requested information may be excepted from disclosure under sections 552.101 and 552.110 of the Government Code, you take no position with respect to the applicability of these exceptions. Instead, you state the department notified the interested third party, the Property Tax Education Coalition, Inc. ("PTEC") of this request for information and its right to submit arguments to this office as to why the information should not be released. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in the Act in certain circumstances). We have received comments from PTEC. We have considered the submitted arguments and reviewed the submitted information. We have also received and considered comments from a representative of the requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released).

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision" and it encompasses information protected by other statutes. Id. § 552.101. PTEC contends the submitted information is confidential under the Federal Copyright Act, title 17 of the United States Code. However, copyright law does not make information confidential for purposes of section 552.101. Open Records Decision No. 660 at 5 (1999) (Federal Copyright Act does not make information confidential, but rather gives copyright holder exclusive right to reproduce his work, subject to another person's right to make fair use of it.). Thus, the department may not withhold the submitted information under section 552.101 in conjunction with the copyright law. The department must permit inspection of copyrighted materials, unless an exception to disclosure is applicable to the information. See Attorney General Opinion JM-672 (1987). In doing so, however, the department also must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Id. A member of the public who wishes to make copies of copyrighted materials must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 at 8-9 (1990).

Next, PTEC raises section 552.110(a) as an exception to disclosure for the submitted information. Section 552.110(a) protects the proprietary interests of private parties by excepting from disclosure trade secrets obtained from a person and privileged or confidential by statute or judicial decision. See Gov't Code § 552.110(a). A "trade secret"

may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives [one] 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 single or ephemeral events in the conduct of the business, as for example the amount or other terms of a secret bid for a contract or the salary of certain employees . . .. A trade secret is a process or device for continuous use in the operation of the business. Generally it relates to the production of goods, as for example, a machine or formula for the production of an article. It may, however, 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); Open Records Decision Nos. 552 at 2 (1990), 255 (1980), 232 (1979), 217 (1978).

There are six factors to be assessed in determining whether information qualifies as a trade secret:

(1) the extent to which the information is known outside of [the company's] business;

(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 to [its] competitors;

(5) the amount of effort or money expended by [the company] in developing this information; and

(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 ORD 232. This office must accept a claim that information subject to the Act is excepted as a trade secret if a prima facie case for exemption is made and no argument is submitted that rebuts the claim as a matter of law. ORD 552. However, we cannot conclude that section 552.110(a) is applicable unless it has been shown that the information meets the definition of a trade secret and the necessary factors have been demonstrated to establish a trade secret claim. Open Records Decision No. 402 (1983).

Having considered PTEC's arguments, we conclude that PTEC has failed to demonstrate that any of the submitted information fits within the definition of a trade secret, nor has PTEC demonstrated the necessary factors to establish a trade secret claim. See ORD 402 (section 552.110(a) does not apply unless information meets definition of trade secret and necessary factors have been demonstrated to establish trade secret claim). Therefore, the department may not withhold any portion of the submitted information under section 552.110(a) of the Government Code.

Next, we understand PTEC to raise section 552.122 of the Government Code for the submitted information. ⁽¹⁾ Section 552.122 of the Government Code excepts from required public disclosure "a test item developed by a . . . governmental body[.]" Gov't Code § 552.122(b). Section 552.122 is a discretionary exception that protects only the interests of a governmental body, as distinguished from exceptions which are intended to protect the interests of third parties. See Open Records Decision No. 522 (1989) (discretionary exceptions in general). As the department did not submit any arguments in support of withholding any information pursuant to section 552.122, the department may not withhold any portion of the submitted information pursuant to section 552.122 of the Government Code. See Open Records Decision No. 665 at 2 n. 5 (2000) (discretionary exceptions generally). As no further exceptions to disclosure have been raised, the department must release the submitted information, but any information that is protected by copyright may only be released in accordance with copyright law.

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,

Amy L.S. Shipp

Assistant Attorney General

Open Records Division

ALS/rl

Ref: ID# 369016

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

c: Mr. Tom Hays

Chairman

Property Tax Education Coalition, Inc.

7700 Chevy Chase Drive, Building One, Suite 425

Austin, Texas 78752-1558

(w/o enclosures)

Footnotes

1. Although PTEC raises section 552.152 of the Government Code, we note that section does not exist, and the correct exception for the substance of PTEC's arguments is section 552.122 of the Government Code.

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