December 14, 2010

Ms. Lisa Calem-Lindstrom

Public Information Coordinator

Texas Facilities Commission

P.O. Box 13047

Austin, Texas 78711-3047

OR2010-18754

Dear Ms. Calem-Lindstrom:

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# 402850.

The Texas Facilities Commission (the "commission") received two requests for information pertaining to project analysis performed pursuant to chapter 2166 of the Government Code. ⁽¹⁾ You claim some of the submitted information is excepted from disclosure under sections 552.101, 552.104, 552.108, and 552.139 of the Government Code. Additionally, you notified the Texas Department of Public Safety (the "department") of its right to submit arguments to this office as to information pertaining to it should not be released. 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). We have received comments from the department. We have considered the submitted arguments and reviewed the submitted information.

Initially, you state the commission raises sections 552.101, 552.108, and 552.139 of the Government Code on behalf of the department. We note neither you nor the department have submitted any arguments explaining why sections 552.108 and 552.139 apply to any portion of the information pertaining to the department. Since no arguments have been submitted explaining why sections 552.108 and 552.139 apply to any of the submitted information, we assume you and the department no longer urge these exceptions. See id. §§ 552.301(b), (e), .302. However, we will consider the department's argument under section 552.101.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. This exception encompasses information that is made confidential by other statutes. The department raises section 552.101 in conjunction with provisions of the Texas Homeland Security Act (the "HSA"), chapter 418 of the Government Code. Sections 418.176 through 418.182 were added to chapter 418 as part of the HSA. These provisions make certain information related to terrorism confidential. Section 418.177 provides that information is confidential if it:

(1) is collected, assembled, or maintained by or for a governmental entity for the purpose of preventing, detecting, or investigating an act of terrorism or related criminal activity; and

(2) relates to an assessment by or for a governmental entity, or an assessment that is maintained by a governmental entity, of the risk or vulnerability of persons or property, including critical infrastructure, to an act of terrorism or related criminal activity.

Id. § 418.177. Section 418.181 provides as follows:

Those documents or portions of documents in the possession of a governmental entity are confidential if they identify the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism.

Id. § 418.181; see generally id. § 421.001 (defining critical infrastructure to include "all public or private assets, systems, and functions vital to the security, governance, public health and safety, and functions vital to the state or the nation"). Section 418.182 provides in part:

(a) [I]nformation, including access codes and passwords, in the possession of a governmental entity that relates to the specifications, operating procedures, or location of a security system used to protect public or private property from an act of terrorism or related criminal activity is confidential.

Id. § 418.182(a). The fact information may be related to a governmental body's emergency response preparedness or security concerns does not make such information per se confidential under the HSA. See Open Records Decision No. 649 at 3 (1996) (language of confidentiality provision controls scope of its protection). Furthermore, the mere recitation by a governmental body of a statute's key terms is not sufficient to demonstrate the applicability of a claimed provision. As with any exception to disclosure, a governmental body asserting one of the confidentiality provisions of the HSA must adequately explain how the responsive records fall within the scope of the claimed provision. See Gov't Code § 552.301(e)(1)(A) (governmental body must explain how claimed exception to disclosure applies).

The department states portions of the information at issue pertain to updates to its headquarters. The department further states the updates are based on an assessment of the vulnerabilities of its headquarters to terrorist attacks and the purpose of the updates is to prevent such attacks and other criminal activity. Further, the department explains the information it seeks to withhold discusses future security implementations in sufficient detail to reveal information that would jeopardize the infrastructure of its headquarters as well as the people and systems located within. Upon review, we find the department has established some of the information at issue would identify the technical details of particular vulnerabilities of the department's headquarters to an act of terrorism. Accordingly, the commission must withhold the information we marked under section 552.101 in conjunction with section 418.181. However, we find the department failed to demonstrate how any of the remaining information at issue identifies the technical details of particular vulnerabilities of the department's headquarters or pertains to assessments of the risk or vulnerability of persons or property to an act of terrorism or related criminal activity. Additionally, we find the department failed to establish how any of the remaining information relates to the specifications, operating procedures, or location of a security system used to protect public or private property from an act of terrorism or related criminal activity. Consequently, the commission may not withhold any of the remaining information at issue under section 552.101 in conjunction with section 418.177, section 418.181, or section 418.182.

We now turn to your argument against release of portions of the remaining information. Section 552.104 of the Government Code excepts from required public disclosure "information which, if released, would give advantage to competitors or bidders." Id. § 552.104(a). The purpose of section 552.104 is to protect the purchasing interests of a governmental body in competitive bidding situations where the governmental body wishes to withhold information in order to obtain more favorable offers. See Open Records Decision No. 592 (1991). Section 552.104 protects information from disclosure if the governmental body demonstrates potential harm to its interests in a particular competitive situation. See Open Records Decision No. 463 (1987). Generally, section 552.104 does not except bids from disclosure after bidding is completed and the contract has been executed. See Open Records Decision No. 541 (1990).

You seek to withhold detailed budget information, which you marked, from the submitted project analyses. You state the commission uses the detailed budget information after receiving approval and funding from the Legislature to create the construction solicitation on behalf of the state agency requesting the project. You further state release of the detailed budget at this time will reveal specific, detailed information concerning the projects which will affect the commission's ability to negotiate the best terms for the state by providing the specific monetary amounts the commission would be willing to accept. Based on your representations and our review, we conclude the commission has demonstrated how release of the information you marked would harm its interests in a competitive situation. Accordingly, the commission may withhold the marked information under section 552.104.

In summary, the commission must withhold the information we marked under section 552.101 of the Government Code in conjunction with section 418.181 of the Government Code. The commission may withhold the information you marked under section 552.104 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,

Ana Carolina Vieira

Assistant Attorney General

Open Records Division

ACV/vb

Ref: ID# 402850

Enc. Submitted documents

c: 2 Requestors

(w/o enclosures)

Footnotes

1. You inform us the commission sought and received clarification of the second request. See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information).

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