November 30, 2010

Mr. R. Brooks Moore

Assistant General Counsel

The Texas A&M University System

200 Technology Way Suite 2079

College Station, Texas 77845-3424

OR2010-17925

Dear Mr. Moore:

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# 401397 (TAMU 10-443, SO-10-081, AR-2010-022).

The Texas A&M University System (the "system"), Texas A&M University (the "university"), and Texas AgriLife Research ("TALR") received a request for "the final version of the DARPA proposal referenced in e-mails between [two named individuals] on 1 September 2009." ⁽¹⁾ You state that neither the system nor the university has information responsive to the instant request. ⁽²⁾ On behalf of TALR, you claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the information you submitted. ⁽³⁾ We also have considered the comments we received from the requestor. ⁽⁴⁾

Initially, we address your representation that the submitted information "may or may not be responsive to this request." You state there is no "final version of the DARPA proposal," as described in the request, because the federal agency involved never formally requested research proposals on the project, and thus no formal proposal was ever developed. The requestor informs us that in requesting the "final version" of the proposal, he "did not posit that the record must have been sent to DARPA in order to be responsive." The requestor explains that by "final version" he means "the proposal at its most mature state." The requestor states that "[t]his appears to be what [TALR] has submitted to your office and . . . is the record that I requested." We note that a governmental body that receives a request for information must make a good-faith effort to relate the request to responsive information that is within the governmental body's possession or control. See Open Records Decision No. 561 at 8-9 (1990). We find the submitted information is responsive to this request; accordingly, we will determine whether the information must be released to the requestor.

You also state, as does the requestor, that a prior version of the submitted document was released to the requestor. ⁽⁵⁾ We note the Act does not permit selective disclosure of information to the public. See Gov't Code §§ 552.007(b), .021; Open Records Decision No. 463 at 1-2 (1987). Information that has been voluntarily released to a member of the public may not subsequently be withheld from another member of the public, unless public disclosure of the information is expressly prohibited by law or the information is confidential under law. See Gov't Code § 552.007(a); Open Records Decision Nos. 518 at 3 (1989), 490 at 2 (1988); but see Open Records Decision Nos. 579 (1990) (exchange of information among litigants in "informal" discovery is not "voluntary" release of information for purposes of statutory predecessor to Gov't Code § 552.007), 454 at 2 (1986) (governmental body that disclosed information because it reasonably concluded that it had constitutional obligation to do so could still invoke statutory predecessor to Gov't Code § 552.108). In this instance, you inform us that the prior release was inadvertent. We note that a governmental body is not precluded from invoking an exception to further public disclosure of information that has been released on a limited basis through no official action and against the wishes and policy of the governmental body. See Open Records Decision No. 376 at 2 (1983); see also Open Records Decision No. 387 at 3 (1983) (information that is not voluntarily released by a governmental body, but nevertheless comes into another party's possession, is not henceforth automatically available to everyone). Moreover, you claim section 552.101 of the Government Code, which is a confidentiality provision for the purposes of section 552.007 of the Government Code. Accordingly, we will address your claim under section 552.101 for the submitted information.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses information other statutes make confidential. Section 51.914 of the Education Code provides in part:

In order to protect the actual or potential value, the following information shall be confidential and shall not be subject to disclosure under [the Act], or otherwise:

(1) all information relating to a product, device, or process, the application or use of such a product, device, or process, and all technological and scientific information (including computer programs) developed in whole or in part at a state institution of higher education, regardless of whether patentable or capable of being registered under copyright or trademark laws, that have a potential for being sold, traded, or licensed for a fee[.]

Educ. Code § 51.914(1). As we noted in Open Records Decision No. 651 (1997), the legislature is silent as to how this office or a court is to determine whether particular scientific information has "a potential for being sold, traded, or licensed for a fee." Furthermore, whether particular scientific information has such a potential is a question of fact that this office is unable to resolve in the opinion process. See id. Thus, this office has stated that in considering whether requested information has "a potential for being sold, traded, or licensed for a fee," we will rely on a university's assertion that the information has this potential. See id.; but see id. at 10 (university's determination that information has potential for being sold, traded, or licensed for fee is subject to judicial review). We note section 51.914 is not applicable to working titles of experiments or other information that does not reveal the details of the research. See Open Records Decision Nos. 557 at 3 (1990), 497 at 6-7 (1988).

You inform us TALR is a state institution of higher education and a member agency of the system. You state the submitted information relates to products developed in whole or in part by TALR. You represent to this office that the products involved have the potential to be sold or licensed for a fee. Based on your representations and our review of the information at issue, we have marked information TALR must withhold under section 552.101 of the Government Code in conjunction with section 51.914 of the Education Code. We conclude the remaining information is not confidential under section 552.101 in conjunction with section 51.914 and 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,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/em

Ref: ID# 401397

Enc: Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We understand that DARPA is an acronym for the federal Defense Advanced Research Projects Agency.

2. We note that the Act does not require a governmental body to release information that did not exist when it received a request, create responsive information, or obtain information that is not held by the governmental body or on its behalf. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.- San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 534 at 2-3 (1989), 518 at 3 (1989), 452 at 3 (1986), 362 at 2 (1983).

3. We note that the submitted information consists of pages 1 through 13 of a 21-page document. This letter ruling assumes that the submitted information is a representative sample of the document and is truly representative of the document as a whole. This ruling neither reaches nor authorizes TALR to withhold any information that is substantially different from the submitted information. See Gov't Code §§ 552.301(e)(1)(D), .302; Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).

4. See Gov't Code § 552.304 (any person may submit written comments stating why information at issue in request for attorney general decision should or should not be released).

5. The requestor has provided what he says is a copy of the document that was previously released. We note that the contents of the document provided by the requestor are similar, but not identical, to those of the document you seek to withhold.

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