June 6, 2011

Mr. Mark G. Mann

Assistant City Attorney

City of Garland

P.O. Box 469002

Garland, Texas 75046-9002

OR2011-07915

Dear Mr. Mann:

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# 419658 (GCA 11-0184).

The City of Garland (the "city") received a request for all release or waiver forms offered to employees leaving the city's employment from January 1, 2008 to January 31, 2011. ⁽¹⁾ You state some information has been released to the requestor. You claim the submitted information is excepted from disclosure under section 552.133 of the Government Code. We have considered the claimed exception and reviewed the submitted information.

Initially, we note a portion of the information you have submitted, which we have marked, is not responsive to the instant request, which seeks waivers offered only from January 1, 2008 to January 31, 2011. This ruling does not address the public availability of non-responsive information, and the city is not required to release non-responsive information in response to this request.

Section 552.133 of the Government Code provides, in relevant part:

(b) Information or records are excepted from [required public disclosure] 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). A "competitive matter" is defined as a utility-related matter that (1) the public power utility governing body determines by vote in good faith to be related to the public power utility's competitive activity, and (2) the release of which would give an advantage to current or prospective competitors. Id. § 552.133(a)(3). Section 552.133(a)(3) lists thirteen categories of information that may not be deemed competitive matters. The attorney general may conclude that section 552.133 is inapplicable to the requested information only if, based on the information provided, the attorney general determines that either (1) the public power utility governing body did not act in good faith in determining that the issue is a competitive matter, or (2) the information requested is not reasonably related to a competitive matter. Id. § 552.133(c). You inform us the city owns and operates its own electric utility, and the city council is the utility's governing body for purposes of section 552.133. You further explain, and provide documentation showing, the city council passed a resolution by vote pursuant to section 552.133 in which the city determined "personnel staffing levels and compensation" are within the scope of the term "competitive matter" due to the advantage such information would give to competitors. You assert the submitted severance agreements, relating to the terms and conditions of an employee's compensation upon leaving the city's employment, come within the scope of the city's resolution. We have no evidence the city failed to act in good faith in adopting this 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. Consequently, we determine the submitted information relates to a competitive matter in accordance with the submitted resolution. Therefore, the city must withhold the submitted information pursuant to section 552.133 of the Government Code.

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,

Misty Haberer Barham

Assistant Attorney General

Open Records Division

MHB/bs

Ref: ID # 419658

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note you sought and received clarification of the request. See Gov't Code § 522.222(b) (stating if information requested is unclear or large amount has been requested, governmental body may ask requestor to clarify or narrow request, but may not inquire into purpose for which information will be used).

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