January 21, 2011

Ms. Kathryn A. Stephens

Clemens & Spencer

112 East Pecan Street, Suite 1300

San Antonio, Texas 78205

OR2011-01024

Dear Ms. Stephens:

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# 406623 (File No. 291-17662).

The Uvalde County Hospital Authority (the "authority"), which you represent, received a request for a specified contract between the authority and Medical Information Technology, Inc. ("Meditech") as well as the proposals from all bidders who responded to a specified RFP. Although you take no position as to the public availability of the submitted contract, you state its release may implicate the proprietary interests of Meditech. Thus, pursuant to section 552.305 of the Government Code, you notified Meditech of the request and of the company's right to submit arguments to this office as to why its information should not be released. Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (determining that statutoJanuary 21, 2011ry predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under in certain circumstances). We have considered the arguments submitted by Meditech and reviewed the submitted information.

Initially, we note you have not submitted the requested proposals. Thus, to the extent the requested proposals existed on the date the authority received the request, we assume they have been released. If not, you must release them at this time. See Gov't Code §§ 552.301(a), .302; see also Open Records Decision No. 664 (2000) (if governmental body concludes that no exceptions apply to requested information, it must release information as soon as possible).

Meditech raises section 552.110 of the Government Code. Section 552.110 protects the proprietary interests of private parties by excepting from disclosure two types of information: (1) "[a] trade secret obtained from a person and privileged or confidential by statute or judicial decision," and (2) "commercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained." See Gov't Code § 552.110(a)-(b).

Section 552.110(a) protects trade secrets obtained from a person and privileged or confidential by statute or judicial decision. Id. § 552.110(a). The Texas Supreme Court has adopted the definition of a "trade secret" from section 757 of the Restatement of Torts, which holds a "trade secret" to be

any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. It differs from other secret information in a business . . . in that it is not simply information as to a single or ephemeral event in the conduct of the business . . . . A trade secret is a process or device for continuous use in the operation of the business . . . . [It may] relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management.

Restatement of Torts § 757 cmt. b (1939); see also Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex. 1958). This office will accept a private person's claim for exception as valid under section 552.110(a) if that person establishes a prima facie case for the exception, and no one submits an argument that rebuts the claim as a matter of law. See Open Records Decision No. 552 at 5 (1990). However, we cannot conclude section 552.110(a) is applicable unless it has been shown the information meets the definition of a trade secret and the necessary factors have been demonstrated to establish a trade secret claim. ⁽¹⁾ Open Records Decision No. 402 (1983).

Section 552.110(b) requires a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from release of the information at issue. See Open Records Decision No. 661 at 5-6 (1999) (for information to be withheld under commercial or financial information prong of section 552.110, business must show by specific factual evidence that substantial competitive injury would result from release of particular information at issue).

Meditech generally claims the submitted agreement contains trade secrets subject to section 552.110(a). However, Meditech has not submitted any arguments explaining how this information meets the definition of a trade secret. Thus, we conclude Meditech has failed to establish any of the submitted information is confidential pursuant to section 552.110(a), and the authority may not withhold any part of the submitted information on that basis.

Meditech also raises section 552.110(b). However, having reviewed the company's submitted arguments, Meditech made only conclusory assertions that release of its information would cause the company substantial competitive injury, and has provided no specific factual or evidentiary showing to support such assertions. See Open Records Decision Nos. 661 (1999), 509 at 5 (1988), 319 at 3 (1982); see also Open Records Decision No. 514 (1988) (public has interest in knowing prices charged by government contractors). Therefore, the authority may not withhold any portion of the submitted information under section 552.110(b) of the Government Code.

The submitted information contains documents 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. Open Records Decision No. 180 at 3 (1977). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id.; see Open Records Decision No. 109 (1975). 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. Accordingly, the submitted information must be released to the requestor, but any information protected by copyright must 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,

Bob Davis

Assistant Attorney General

Open Records Division

RSD/tf

Ref: ID# 406623

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Ms. Maryanne Emmanuel Giglia

Assistant Corporate Counsel

Meditech

Meditech Circle

Westwood, Massachusetts 02090

(w/o enclosures)

Footnotes

1. The Restatement of Torts lists the following six factors as indicia of whether information constitutes a trade secret:

(1) the extent to which the information is known outside of [the company];

(2) the extent to which it is known by employees and others involved in [the company's] business;

(3) the extent of measures taken by [the company] to guard the secrecy of the information;

(4) the value of the information to [the company] and [its] competitors;

(5) the amount of effort or money expended by [the company] in developing the information;

(6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

Restatement of Torts § 757 cmt. b; see also Open Records Decision Nos. 319 at 2 (1982), 306 at 2 (1982), 255 at 2 (1980).

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