 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
June 25, 2010 Mr. Tyler Wallach Assistant City Attorney City of Fort Worth 1000 Throckmorton Street, 3rd Floor Fort Worth, Texas 76102 OR2010-09399 Dear Mr. Wallach: 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# 384778 (City of Fort Worth PIR Nos. W000128 and W000206). The City of Fort Worth (the "city") received two requests for information relating to Request for Proposals number 07-308. The first requestor seeks the contract awarded to eVerge Group ("eVerge") and all amendments, the award letter, all invoices, cost and technical proposals and other information submitted by eVerge, and the city's evaluations of all cost and technical proposals submitted. You state that the city has released the contract and amendments, award letter, invoices and evaluations to the first requestor. You indicate that the remaining information responsive to the request from the first requestor was previously ruled on by this office. The second requestor seeks copies of all vendor responses to the request for proposals. You indicate that most of the information responsive to the second requestor's request was also previously ruled on by this office. In this regard, we note that in Open Records Letter Number 2010-06103 (2010), this office ruled on an earlier request for information relating to Request for Proposals number 07-308. In this ruling, we concluded that the city must withhold the information we indicated in SunGard's and Oracle's proposals under section 552.110(a) of the Government Code, and that the remaining information must be released to the requestor, but any information that is protected by copyright may only be released in accordance with copyright law. Accordingly, the city must continue to rely on Open Records Letter Number 2010-06103 and withhold or release the information at issue to the respective requestors in accordance with that ruling. However, you have submitted additional information that you inform us was not at issue in the previous ruling, but that is responsive to the request from the second requestor. Therefore, we will next address this information, which you have submitted as Exhibit C. You state that the city will withhold the insurance numbers and e-mail addresses in the submitted information pursuant to a previous determination issued to the city. (1) While you take no position with respect to the public availability of the remaining submitted information, you state that you have notified certain interested third parties of this request for information and of their right to submit arguments to this office as to why the information should not be released. (2) 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 arguments from CherryRoad. We have considered the submitted arguments and reviewed the submitted information. With regard to the second request, we note that the city failed to comply with the procedural requirements of section 552.301 of the Government Code. A governmental body's failure to comply with the procedural requirements of section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code § 552.302; City of Dallas v. Abbott, 279 S.W.3d 806, 811 (Tex. App.--2007, pet. granted); Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App.--Fort Worth 2005, no pet.); Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ); Open Records Decision No. 319 (1982). The presumption that information is public under section 552.302 can generally be overcome by demonstrating that the information is confidential by law or third-party interests are at stake. See Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). Because the proprietary interests of third parties are at stake, we will address the submitted arguments. CherryRoad seeks to withhold certain internal financial statements submitted to the city. As we noted in Open Records Letter Number 2010-06103, the city did not submit that information for our review. Because the city has again not submitted such information, this ruling does not address that information and is limited to information submitted as responsive by the city. See Gov't Code § 552.301(e)(1)(D) (governmental body requesting decision from Attorney General must submit copy of specific information requested). 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 id. § 552.305(d)(2)(B). As of the date of this letter, this office has not received comments from any of the other third parties who were notified of the requests by the city explaining why any of the submitted information should not be released. Therefore, we have no basis to conclude that any of these third parties have a protected proprietary interest 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. Accordingly, the city may not withhold any portion of the submitted information based on the proprietary interests of the notified third parties. We note that some of the submitted information appears to be protected by copyright. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Attorney General Opinion JM-672 (1987). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id. If a member of the public wishes to make copies of copyrighted materials, the person 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 (1990). In summary, the city must continue to rely on Open Records Letter Number 2010-06103 and withhold or release the information at issue to the respective requestors in accordance with that ruling. The remaining submitted information must be released to the second requestor, 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, Kay Hastings Assistant Attorney General Open Records Division KH/MAP/sdk Ref: ID# 384778 Enc. Submitted documents c: 2 Requestors (w/o enclosures) Mr. Jeremy Gulban President & Chief Operating Officer CherryRoad Technologies, Inc. 301 Gibralter Drive, Suite 2C Morris Plains, New Jersey 07950 (w/o enclosures) Mr. Dan Puett Business Development and Delivery Executive CIBER, Inc. 5251 DTC Parkway, Suite 1400 Greenwood, Colorado 80111 (w/o enclosures) Mr. Esteban Neely President eVerge Group 4965 Preston Park Boulevard, Suite 700 Plano, Texas 75093 (w/o enclosures) Mr. Kyle Foster Sales Executive Kronos Incorporated 600 East Las Colinas Boulevard, Suite 1700 Irving, Texas 75039 (w/o enclosures) Mr. Don Cleghorn Account Executive SAP Public Services, Inc. 5215 North O'Connor Boulevard, Suite 800 Irving, Texas 75039 (w/o enclosures) Mr. Don Grind Solution Centers P.O. Box 2441 Placerville, California 95667 (w/o enclosures) Mr. Steve Welch Vice President Strategic Information Solutions, Inc. 200 North LaSalle Street, Suite 900 Chicago, Illinois 60601 (w/o enclosures) Mr. Matt Chavez Regional Sales Manager Sungard Public Sector - Bi-Tech Product Line 890 Fortress Street Chico, California 95973 (w/o enclosures) Mr. Bart Green Senior Account Executive Lawson Software c/o Tyler Wallach City of Fort Worth 1000 Throckmorton Street, 3rd Floor Fort Worth, Texas 76102 (w/o enclosures) Mr. Chris Myers CedarCrestone 5702 Four Seasons Lane McKinney, Texas 75071 (w/o enclosures) Mr. Mike Unruh Director of Business Development Iturs Technologies, Inc. 206 Elm, Suite 102 Lewisville, Texas 75057 (w/o enclosures) Footnotes1. We note this office recently issued Open Records Decision No. 684 (2009), a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including insurance policy numbers under section 552.136 of the Government Code and certain e-mail addresses under section 552.137, without the necessity of requesting an attorney general decision. We note, however, that Open Records Decision No. 684 does not authorize the withholding of e-mail addresses that fall under one of the exceptions listed in section 552.137(c), which includes e-mail addresses provided to a governmental body by a vendor who seeks to contract with the governmental body or by the vendor's agent, and those contained in a response to a request for bids or proposals, contained in a response to similar invitations soliciting offers or information relating to a potential contract, or provided to a governmental body in the course of negotiating the terms of a contract or potential contract. See Gov't Code § 552.137(c). 2. The interested third parties are CIBER, Inc.; eVerge; SAP Public Service; Strategic Information Solutions, Inc.; CherryRoad Technologies ("CherryRoad"); Oracle; SunGard Public Sector; Lawson Software; Kronos Incorporated; Solutions Centers, Itrus Technologies; and CedarCrestone.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |