May 6, 2010

Ms. Sarah Irwin Swanson

Deputy Director of General Law

Public Utility Commission of Texas

P.O. Box 13326

Austin, Texas 78711

OR2010-06572

Dear Ms. Swanson:

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# 378412 (PUC ID Nos. 2010-02-018 through 2010-02-045).

The Public Utility Commission (the "commission") received 28 separate requests from the same requestor for information pertaining to the Rate Reduction Program Reimbursement Requests filed by two specified companies from January 2009 through February 2010. You state that the requested information from January through April 2009 and from October 2009 to February 2010 does not exist. Although the commission takes no position on whether the submitted information is excepted from disclosure, you state that its release may implicate the proprietary interests of TXU Energy ("TXU") and StarTex Power ("StarTex") (collectively, the "third parties"). Accordingly, you inform us, and provide documentation showing, that you notified TXU and StarTex of the request and of their right to submit arguments to this office as to why their information should not be released. See Gov't Code § 552.305(d) (permitting interested third party to submit to attorney general reasons why requested information should not be released); 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 exceptions to disclosure under certain circumstances). You state TXU does not object to release of its respective information, and therefore the commission is withdrawing the portion of its request that pertains to TXU. We have received comments from the law firm that represents StarTex. We have also received comments from the requestor. See Gov't Code § 552.304 (providing that interested party may submit comments stating why information should or should not be released). We have considered the submitted arguments and reviewed the submitted information.

Initially, we understand StarTex to raise section 552.104 of the Government Code for its information. Section 552.104 excepts "information that, if released, would give advantage to a competitor or bidder." Gov't Code § 552.104(a). This exception protects the competitive interests of governmental bodies such as the commission, and not the proprietary interests of private parties such as StarTex. See Open Records Decision No. 592 at 8 (1991) (discussing statutory predecessor). In this instance, the commission did not raise section 552.104 as an exception to disclosure. Therefore, the commission may not withhold any of StarTex's information under section 552.104 of the Government Code.

Next, StarTex asserts a portion of its information is confidential under section 552.110(a) of the Government Code. Section 552.110(a) protects the proprietary interests of private parties with respect to "[a] trade secret obtained from a person and privileged or confidential by statute or judicial decision." Gov't Code § 552.110(a).

The Supreme Court of Texas 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 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. . . . [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 Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex. 1958). This office will accept a third party's claim for exception as valid under section 552.110(a) if the third party establishes a prima facie case for the exception and no one submits an argument that rebuts the claim as a matter of law. ⁽¹⁾ See Open Records Decision No. 552 at 5 (1990). 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. See Open Records Decision No. 402 (1983).

Upon review of the submitted information and StarTex's arguments, we determine StarTex has failed to demonstrate any portion of its submitted information meets the definition of a trade secret, nor has it demonstrated the necessary factors to establish a trade secret claim for this information. Accordingly, the commission may not withhold any of StarTex's submitted information on the basis of section 552.110(a) of the Government Code. As no further exceptions to disclosure are raised, the submitted information must be released to the requestor.

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,

James McGuire

Assistant Attorney General

Open Records Division

JM/dls

Ref: ID# 378412

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Mr. C. Jake Posey

The Posey Law Firm, P.C.

For StarTex Power, Inc.

208 West 14^th Street, Suite 201

Austin, Texas 78701

(w/o enclosures)

Mr. John Munn

TXU Energy

6555 Sierra Drive, 3^rd Floor

Irving, Texas 75039

(w/o enclosures)

Footnotes

1. 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 other 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 Open Records Decision Nos. 319 at 2 (1982), 306 at 2 (1982), 255 at 2 (1980).

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