January 13, 2011

Ms. Jessica C. Eales

Assistant City Attorney

City of Houston

P.O. Box 368

Houston, Texas 77001-0368

OR2011-00652

Dear Ms. Eales:

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# 408070 (GC No. 17857).

The City of Houston (the "city") received a request for a final bid tabulation related to a specified project. You claim the submitted information is excepted from disclosure under section 552.104 of the Government Code. You also state that the proprietary interests of Metro City Construction, L.P. ("Metro City"), D.L. Elliott Enterprises, Inc. ("Elliott"), and Resicom, Inc. ("Resicom") might be implicated. Accordingly, you provided notice to Metro City, Elliott, and Resicom of the request and their right to submit arguments to this office explaining why their information should not be released. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released). We have considered the exception you claim and reviewed the submitted information.

Initially, we note, and you acknowledge, the city failed to meet the statutory deadlines imposed by section 552.301 of the Government Code. See Gov't Code § 552.301(b). Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the 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 id. § 552.302; 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) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302); see also Open Records Decision No. 630 (1994). A compelling reason exists when third-party interests are at stake or when information is confidential by law. Open Records Decision No. 150 (1977). Although you assert the submitted information is excepted under section 552.104 of the Government Code, this section is discretionary in nature. It serves only to protect a governmental body's interests, and may be waived; as such, it does not constitute a compelling reason to withhold information for purposes of section 552.302. See Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 663 at 5 (1999) (untimely request for a decision resulted in waiver of discretionary exceptions), 592 (1991) (governmental body may waive statutory predecessor to section 552.104). Consequently, the city may not withhold any of the submitted information under section 552.104. However, because third party interests can provide a compelling reason to withhold information, we will consider whether any of the submitted information may be excepted under the Act.

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 Gov't Code § 552.305(d)(2)(B). As of the date of this letter, we have not received comments from Metro City, Elliott, or Resicom explaining why any portion of the submitted information should not be released. Therefore, we have no basis to conclude Metro City, Elliott, or Resicom has any 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 (1990). Consequently, the city may not withhold any of the submitted information on the basis of any proprietary interest Metro City, Elliott, or Resicom may have in the information. As the city raises no other exceptions to disclosure, the submitted 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,

Neal Falgoust

Assistant Attorney General

Open Records Division

NF/dls

Ref: ID# 408070

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Mr. Robert N. Smither

Chief Estimator

Metro City Construction, L.P.

5715 Luce Street

Houston, Texas 77087

(w/o enclosures)

Mr. Darryl Elliott

President

D.L. Elliott Enterprises, Inc.

13405 Southwest Freeway, Suite 210

Sugar Land, Texas 77478

(w/o enclosures)

Mr. Ike Anya

President

Resicom, Inc.

5909 West Loop South, Suite 560

Houston, Texas 77401

(w/o enclosures)

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