January 11, 2011

Mr. Kipling D. Giles

Senior Counsel

Legal Services Division

CPS Energy

P.O. Box 1771

San Antonio, Texas 78296

OR2011-00545

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# 405599.

The City Public Service Board of the City of San Antonio d/b/a CPS Energy ("CPS") received a request for (1) all responses to RFP No. 7000088493; (2) documents, including notes, pertaining to the evaluation of the responses to the RFP; (3) documents provided to CPS' governing body relating to the RFP; (4) all actions of the governing body relating to the RFP, including resolutions and meeting minutes; and (5) contractual documents between CPS and the entity selected to provide the service referenced in the RFP. You indicate some information has been released to the requestor. You claim the remaining requested information is excepted from disclosure under sections 552.111 and 552.133 of the Government Code. You also state release of portions of the submitted information may implicate the proprietary interests of Pace Global Energy Risk Management, L.L.C. ("Pace") and The Energy Authority, Inc. ("Energy Authority"). Accordingly, you notified Pace and Energy Authority of the request for information 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); 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 comments from Pace and Energy Authority. We have considered the submitted arguments and reviewed the submitted information.

Section 552.133 of the Government Code excepts from disclosure a public power utility's information related to a competitive matter. Section 552.133(b) provides:

Information or records are excepted from the requirements of Section 552.021 if the information or records are reasonably related to a competitive matter, as defined in this section. Excepted information or records include the text of any resolution of the public power utility governing body determining which issues, activities, or matters constitute competitive matters. Information or records of a municipally owned utility that are reasonably related to a competitive matter are not subject to disclosure under this chapter, whether or not, under the Utilities Code, the municipally owned utility has adopted customer choice or serves in a multiply certificated service area. This section does not limit the right of a public power utility governing body to withhold from disclosure information deemed to be within the scope of any other exception provided for in this chapter, subject to the provisions of this chapter.

Gov't Code § 552.133(b). Section 552.133(a)(3) defines a "competitive matter" as a matter the public power utility governing body in good faith determines by vote to be related to the public power utility's competitive activity, the release of which would give an advantage to competitors or prospective competitors. See id. § 552.133(a)(3). However, section 552.133(a)(3) also provides thirteen categories of information that may not be deemed competitive matters. The attorney general may conclude section 552.133 is inapplicable to the requested information only if, based on the information provided, the attorney general determines the public power utility governing body has not acted in good faith in determining that the issue, matter, or activity is a competitive matter or that the information requested is not reasonably related to a competitive matter. Id. § 552.133(c).

CPS is a public power utility for purposes of section 552.133. You inform us, and provide documentation showing, the CPS Energy Board of Trustees (the "board"), as governing body of CPS, passed a resolution by vote pursuant to section 552.133 in which the board defined the information considered to be within the scope of the term "competitive matter." You assert the submitted information comes within the scope of specified provisions within the resolution. The submitted information is not among the thirteen categories of information that section 552.133(a)(3) expressly excludes from the definition of competitive matter. Furthermore, we have no evidence the board failed to act in good faith. Upon review, we determine the submitted information relates to competitive matters in accordance with the submitted resolution. Therefore, CPS must withhold the submitted information under section 552.133. As our ruling is dispositive, we need not address the remaining arguments against disclosure.

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/eeg

Ref: ID# 405599

Enc. Submitted documents

c: Requestor

(w/o enclosures)

c: Mr. Adam B. Fine

General Counsel

Pace Global Energy Risk Management, L.L.C.

4401 Fair Lakes Court, Suite 400

Fairfax, Virginia 22033-3848

(w/o enclosures)

Mr. Darrell R. DuBose

Contracts and Proposals Manager

The Energy Authority, Inc.

301 West Bay Street, Suite 2600

Jacksonville, Florida 32202

(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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