March 23, 2010

Mr. Kipling D. Giles

Senior Counsel

Legal Services Division

City Public Service Board

P.O. Box 1771

San Antonio, Texas 78296

OR2010-04075

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# 374229.

The City Public Service Board of the City of San Antonio d/b/a CPS Energy ("CPS") received a request for information pertaining to the award of a specified contract, including the references provided by StreamServe DS LLC ("SSDL") in responding to request for proposals number 7000090167 and the deciding factor in selecting SSDL. You state CPS takes no position with regard to the release of the requested information. However, you state that the submitted information may implicate the proprietary interests of SSDL and Xerox Corporation ("Xerox"). Accordingly, you state and provide documentation showing that you notified the third parties of this request and of their opportunity to submit comments to this office explaining why the information at issue should be withheld from disclosure. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); 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 in the Act in certain circumstances). We have received comments from SSDL. We have considered the submitted arguments and reviewed the submitted information.

Initially, we note that 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 requested information relating to that party should be withheld from disclosure. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, only SSDL has submitted comments to this office regarding how release of its submitted information will affect its proprietary interests. Thus, we have no basis to conclude that the release of any portion of Xerox's submitted information would implicate its proprietary interests. See, e.g., Open Records Decision Nos. 661 at 5-6 (1999) (stating that business enterprise that claims exception for commercial or financial information under section 552.110(b) must show by specific factual evidence 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). Accordingly, CPS may not withhold any portion of the submitted information on the basis of any proprietary interest Xerox may have in the information.

We also note that a portion of the requested information was the subject of a previous request for information, in response to which this office issued Open Records Letter No. 2010-03791 (2010). In Open Records Letter No. 2010-03791, we ruled that, as the winning bidder, SSDL had not made the specific factual or evidentiary showing required by section 552.110(b) to demonstrate that release of its pricing information would cause the company substantial competitive harm. As we have no indication the law, facts, and circumstances on which the prior ruling was based have changed, CPS must continue to rely on that ruling as a previous determination and release the previously ruled upon information in accordance with Open Records Letter No. 2010-03791. See Open Records Decision No. 673 (2001) (so long as law, facts, and circumstances on which prior ruling was based have not changed, first type of previous determination exists where requested information is precisely same information as was addressed in prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure).

SSDL asserts that a portion of the remaining information, consisting of certain customers on its customer list, is excepted from disclosure under section 552.110(b). 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 ORD 661. Upon review, we find that SSDL has established that the release of these specific customers would cause the company substantial competitive injury. Therefore, CPS must withhold this information, which we have marked, under section 552.110(b) of the Government Code.

In summary, CPS must withhold the information we have marked pursuant to 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,

Lauren J. Holmsley

Assistant Attorney General

Open Records Division

LJH/jb

Ref: ID# 374229

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Mr. Jeff Legler

Xerox Corporation

100 North East Loop 410, Suite 625

San Antonio, Texas 78216

(w/o enclosures)

Mr. Mike Pepe

StreamServe DS LLC

3 Van de Graaff Drive

Burlington, Massachusetts 01803

(w/o enclosures)

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