 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 16, 2010 Mr. Kipling D. Giles Senior Counsel Legal Services Division CPS Energy P.O. Box 1771 San Antonio, Texas 78296 OR2010-02230 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# 370360. The City Public Service Board of the City of San Antonio d/b/a CPS Energy ("CPS") received a request for all responses to the request for proposals issued by CPS for 100 megawatts of solar generated electricity and a copy of any contracts signed pursuant to the request for proposals. You claim that the requested information is excepted from disclosure under sections 552.104 and 552.133 of the Government Code. You also state that portions of the submitted information may implicate the proprietary interests of third parties. Accordingly, you state that you notified the third parties of the request for information and of their right to submit arguments to this office as to why its information should not be released. (1) 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). Pursuant to section 552.305(d), we have received comments from enXco, eSolar, Juwi, NRG, SES, and SolarReserve objecting to the release of its information. We have considered the submitted arguments and reviewed the submitted information. 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 the requirements of Section 552.021 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). Section 552.133(a)(3) defines a "competitive matter" 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) also provides thirteen categories of information that may not be deemed competitive matters. 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 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. Id. § 552.133(c). CPS is a public power utility for purposes of section 552.133. You inform us, and provide documentation showing, that the CPS Energy Board of Trustees (the "board"), as governing body of CPS, passed a resolution by vote pursuant to section 552.133 in which the board defined the information considered to be within the scope of the term "competitive matter." You assert that the submitted information comes within the scope of specified provisions within the resolution. 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. Furthermore, we have no evidence that the board failed to act in good faith. See id. § 552.133(c). Upon review, we determine that the submitted information relates to competitive matters in accordance with the submitted resolution. Therefore, CPS must withhold the submitted information pursuant to section 552.133 of the Government Code. As our ruling is dispositive, we need not address the remaining arguments against disclosure. 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, Andrea L. Caldwell Assistant Attorney General Open Records Division ALC/eeg Ref: ID# 370360 Enc. Submitted documents c: Requestor (w/o enclosures) Mr. Daniel W. Kabel Acciona Solar Power, Inc. 25510N Green valley Parkway, Suite 205B Henderson, Nevada 89014 (w/o enclosures) Mr. Paul McMillen SunPower 1414 Barbour Way South Richmond, California 94804 (w/o enclosures) Mr. Christian Hackett Babcock & Brown One Letterman Drive, Building D San Francisco, California 94129 (w/o enclosures) Mr. Kevin Bassalleck Consolidated Solar Tech 219 Central Avenue NW, Suite M1 Albuquerque, New Mexico 87102 (w/o enclosures) Ms. Angela Schwarz Elements Markets, LLC 3555 Timmons Lane, Suite 900 Houston, Texas 77027 (w/o enclosures) Mr. Asif Ansari eSolar, Inc 130 West Union Street Pasadena, California 91103 (w/o enclosures) Ms. Susan D. Banowsky Vinson & Elkins 2801 Via Fortuna, Suite 100 Austin, Texas 78746 (w/o enclosures) Mr. Douglas W. Kirkley Honeywell Building Solutions SES 1250 west Sam Houston Parkway S, Suite 500S Houston, Texas 77042 (w/o enclosures) Mr. Jay Sonnenberg Juwi Solar, Inc. 1805 29th Street, Suite 2050 Boulder, Colorado 80301 (w/o enclosures) Mr. Douglas Wert Martifer Renewables Solar Thermal, LLC 12555 High Bluff Boulevard, Suite 100 San Diego, California 92130 (w/o enclosures) Mr. Bob Hooper MMA Renewable Ventures, LLC 44 Montgomery Street, Suite 2400 San Francisco, California 94104 (w/o enclosures) Mr. Will Stokes NRG 1302 McKinney, Suite 2300 Houston, Texas 77010 (w/o enclosures) Mr. Joe Freeland Matthews & Freeland 327 Congress, Suite 300 Austin, Texas 78701 (w/o enclosures) Mr. Michael McCabe Oak Leaf Energy Partners 1430 Wynkoop Street, Suite 100 Denver, Colorado 80202 (w/o enclosures) Mr. Freddy Sanches Sithe Global Powers, LLC Three Riverway, Suite 1100 Houston, Texas 77056 (w/o enclosures) Ms. Barbara O'Neil enXco Development Corporation 600 17th Street, Suite 2800 South Denver, Colorado 80202 (w/o enclosures) Mr. Alex J. Lazur enXco 700 La Terraza Boulevard, Suite 200 Escondido, California 92025 (w/o enclosures) Mr. Jared Schoch Sun Edison Utility Solutions, LLC 12500 Baltimore Avenue Beltsville, Maryland 20705 (w/o enclosures) Mr. Peter Lynch Stirling Energy Systems, Inc. Biltmore Lakes Corporate Center 2920 East Camelback Road, Suite 150 Phoenix, Arizona 85016 (w/o enclosures) Mr. James A. Boyd Premier CIRE Systems, Inc P.O. Box 312287 New Braunfels, Texas 78131 (w/o enclosures) Mr. Matthew McCullough Solar Monkey 8915 Research Drive, Suite 100 Irvine, California 92618 (w/o enclosures) Mr. Ray Atkinson Verdes Solaris Energy 7557 Rambler Road, Suite 700 Dallas, Texas 75231 (w/o enclosures) Mr. Marc Sabine SolarReserve, LLC 2425 Olympic Boulevard, Suite 500 East Santa Monica, California 90404 (w/o enclosures) Mr. Amir Shafaie SolarReserve, LLC 2425 Olympic Boulevard, Suite 500 East Santa Monica, California 90404 (w/o enclosures) Mr. Peter Moritzburke Solar Point Partners LLC 915 Franklin Street MS 4H Houston, Texas 77002 (w/o enclosures) Mr. Joseph C. Lerner SkyGlen Solar Energy LLC One South Wacker Drive, Suite 2020 Chicago, Illinois 60606 (w/o enclosures) Mr. Sean McCloskey Penn Real Estate Group, Ltd 620 Rights Ferry Road Bal Cynwyd, Pennsylvania 19004 (w/o enclosures) Mr. Hachem Becher SolarVoltaics P.O. Box 12871 Dallas, Texas 75225 (w/o enclosures) Mr. Mark Parker 760 Mather #321 New Braunfels, Texas 78130 (w/o enclosures) Mr. Brent C. Bailey Tessera Solar 1001 McKinney Street, #1730 Houston, Texas 77002 (w/o enclosures) Footnotes1. The interested third parties are Acciona Solar Power, Inc.; SunPower; Consolidated Solar Tech; Elements Markets, LLC; enXco Development Corporation ("enXco"); eSolar, Inc. ("eSolar"); Honeywell Building Solutions SES; Juwi Solar, Inc. ("Juwi"); Martifer Renewable Solar Thermal, LLC; MMA Renewable Ventures, LLC; NRG Energy, Inc. ("NRG"); Oak Leaf Energy Partners; Sithe Global Power, LLC; SunEdison Utility Solutions, LLC; Stirling Energy Systems, Inc. ("SES"); Premier CIRE Systems Inc.; Solar Monkey; Verdes Solaris Energy; SolarReserve, LLC ("SolarReserve"); Solar Point Partners LLC; SkyGen Solar Energy LLC; Penn Real Estate Group, Ltd.; and SolarVotaics.
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