October 4, 2011

Mr. Justin Gordon

Assistant General Counsel

Office of the Governor

P.O. Box 12428

Austin, Texas 78711

OR2011-14353

Dear Mr. Gordon:

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# 431881 (OOG# 242-11).

The Office of the Governor (the "governor") received a request for information concerning compliance reports, amendment agreements, and development agreements related to the Texas Enterprise Fund. ⁽¹⁾ You state the governor has released some of the information. You also state the governor will release certain agreements pursuant to our rulings in Open Records Letter Nos. 2011-10110 (2011) and 2011-04570 (2011). See Open Records Decision No. 673 (2001) (so long as law, facts, and circumstances on which prior ruling was based have not changed, first type of previous determination exists where requested information is precisely same information as was addressed in a prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure). Although you take no position with respect to the public availability of the remaining requested information, you state the proprietary interests of certain third parties might be implicated. Accordingly, you notified these third parties of the request and of their right to submit arguments to this office explaining why their information should not be released. ⁽²⁾ See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); see also Open Records Decision No. 542 (1990) (determining statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in certain circumstances). We have received arguments submitted by AHP, Authentix, Comerica, Fidelity, G-Con, Huntsman, JTEKT, KLN, LegalZoom, Motiva, Raytheon, Ruiz, ⁽³⁾ Santana, TxEC, T-Mobile, Trace, Tyson, VRM, and Zarges. Thus, we have considered these arguments and reviewed the submitted information.

In correspondence dated September 23, 2011, you state you are withdrawing your request for a ruling on information pertaining to Hilmar, Frito-Lay, Maxim, Nationwide, and Triumph. You inform us these third parties notified the governor that they do not object to the release of their information. Thus, you have released their information to the requestor. Accordingly, this ruling does not address the information relating to Hilmar, Frito-Lay, Maxim, Nationwide, and Triumph.

We note Authentix only argues against the disclosure of its customer information, which was not submitted by the governor for our review. This ruling does not address information that was not submitted by the governor and is limited to information submitted as responsive by the governor. See Gov't Code § 552.301(e)(1)(D) (governmental body requesting decision from attorney general must submit copy of specific information requested). As Authentix has not submitted arguments against disclosure of any of the submitted information, the governor may not withhold any information on the basis of Authentix's arguments.

An interested third party is allowed ten business days after the date of its receipt of the governmental body's notice to submit its reasons, if any, as to why information relating to that party should not be released. See id. § 552.305(d)(2)(B). As of the date of this letter, we have not received arguments from 3M, ADP, Allied, Alloy, Allstate, BD, Cardiovascular, Caterpillar, CITGO, CK, Coll, Consolidated, eBay, Facebook, FlightSafety, GE, GGNSC, Greenstar, Grifols, Hanger, HMS, HelioVolt, Home Depot, idX, Jyoti, Kohls, Latex, Lee, Lockheed, Lorimer, MHES, McLane, MinMed, Nationstar, NewlyWeds, Petco, Rackspace, Rockwell, Samsung, SW, Sematech, SunPower, Superior, TEI, TD Ameritrade, TIGM, Torchmark, USBC, UT-D, UTHSC, VCE, or ZAH. Thus, these third parties have not demonstrated a protected proprietary interest in any of the submitted information. See id. § 552.110(a)-(b); 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. Accordingly, the governor may not withhold the submitted information on the basis of any proprietary interests these third parties may have in the information.

Initially, we address the arguments by G-Con, TxEC, and LegalZoom that their information should not be disclosed because of confidentiality agreements. Information is not confidential under the Act simply because the party that submits the information anticipates or requests that it be kept confidential. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976). In other words, a governmental body cannot overrule or repeal provisions of the Act through an agreement or contract. See Attorney General Opinion JM-672 (1987); Open Records Decision Nos. 541 at 3 (1990) ("[T]he obligations of a governmental body under [the Act] cannot be compromised simply by its decision to enter into a contract."), 203 at 1 (1978) (mere expectation of confidentiality by person supplying information does not satisfy requirements of statutory predecessor to section 552.110). Consequently, unless the information at issue falls within an exception to disclosure, it must be released, notwithstanding any expectation or agreement to the contrary.

The following third parties have raised section 552.110 of the Government Code: AHP, Comerica, Fidelity, G-Con, Huntsman, JTEKT, KLN, LegalZoom, Motiva, Raytheon, Ruiz, T-Mobile, TxEC, Trace, Tyson, VRM, and Zarges. Section 552.110 protects (1) trade secrets, and (2) commercial or financial information the disclosure of which 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 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 single or ephemeral events 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 776 (Tex. 1958). In determining whether particular information constitutes a trade secret, this office considers the Restatement's definition of trade secret as well as the Restatement's list of six trade secret factors. ⁽⁴⁾ This office must accept a claim that information subject to the Act is excepted as a trade secret if a prima facie case for the exception is made and no argument is submitted that rebuts the claim as a matter of law. See ORD 552 at 5. However, we cannot conclude that 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. Open Records Decision No. 402 (1983).

Section 552.110(b) protects "[c]ommercial 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[.]" Gov't Code § 552.110(b). This exception to disclosure 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. ⁽⁵⁾ Id.; see also ORD 661 at 5.

Ruiz, Tyson, and Zarges contend portions of their information constitute trade secrets. Upon review, we find none of these third parties have demonstrated any of their submitted information meets the definition of a trade secret, nor have they demonstrated the necessary factors to establish a trade secret claim. See Restatement of Torts § 757 cmt. b, ORD 402 (section 552.110(a) does not apply unless information meets definition of trade secret and necessary factors have been demonstrated to establish trade secret claim). Accordingly, the governor may not withhold any of these third parties' information under section 552.110(a) of the Government Code.

AHP, Comerica, Fidelity, G-Con, Huntsman, JTEKT, KLN, LegalZoom, Motiva, Raytheon, Ruiz, TxEC, Trace, T-Mobile, Tyson, VRM, and Zarges seek to withhold portions of their information under section 552.110(b). Upon review, we find AHP, Comerica, Fidelity, JTEKT, KLN, LegalZoom, Motiva, Ruiz, T-Mobile, Raytheon, Trace, Tyson, VRM, and Zarges have demonstrated the salary information we have marked constitutes commercial or financial information, the disclosure of which would cause substantial competitive harm. ⁽⁶⁾ Upon further review, we find Trace has demonstrated the financial information we have marked constitutes commercial or financial information, the disclosure of which would cause substantial competitive harm. Finally, TxEC has demonstrated a portion of its information, which we have marked, constitutes commercial or financial information, the release of which would cause substantial competitive harm. Accordingly, the governor must withhold the information we have marked under section 552.110(b) of the Government Code. As to the remaining information, we find AHP, Comerica, Fidelity, G-Con, Huntsman, JTEKT, KLN, LegalZoom, Motiva, Raytheon, Ruiz, TxEC, Trace, T-Mobile, Tyson, VRM, and Zarges have not demonstrated how any of the remaining information constitutes commercial or financial information, the disclosure of which would cause substantial competitive harm. We note G-Con seeks to withhold the terms of a contract under section 552.110(b). The terms of a contract with a governmental body are generally not excepted from public disclosure. See Gov't Code § 552.022(a)(3) (contract involving receipt or expenditure of public funds expressly made public); Open Records Decision No. 541 at 8 (1990) (public has interest in knowing terms of contract with state agency). Accordingly, the governor may not withhold any of the remaining information under section 552.110(b) of the Government Code.

LegalZoom, Motiva, G-Con, Ruiz, and Zarges raise section 552.131 of the Government Code. Section 552.131 relates to economic development information and provides in part:

(a) Information is excepted from [required public disclosure] if the information relates to economic development negotiations involving a governmental body and a business prospect that the governmental body seeks to have locate, stay, or expand in or near the territory of the governmental body and the information relates to:

(1) a trade secret of the business prospect; or

(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.

(b) Unless and until an agreement is made with the business prospect, information about a financial or other incentive being offered to the business prospect by the governmental body or by another person is excepted from [required public disclosure].

Gov't Code § 552.131(a), (b). Section 552.131(a) excepts from disclosure only "trade secret[s] of [a] business prospect" and "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." Id. This aspect of section 552.131 is co-extensive with section 552.110 of the Government Code. See id. § 552.110(a)-(b). Because we have already disposed of these third-party claims under section 552.110, the governor may not withhold any of the remaining information under section 552.131(a) of the Government Code. Furthermore, we note section 552.131(b) is designed to protect the interests of governmental bodies, not third parties. As the governor does not assert section 552.131(b) as an exception to disclosure, we conclude no portion of the remaining information is excepted under section 552.131(b) of the Government Code.

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. Although G-Con generally asserts its submitted information is subject to section 552.101, it has not directed our attention to any confidentiality provision that would make any of the submitted information confidential under section 552.101. See, e.g., Open Records Decision Nos. 611 at 1 (1992) (common-law privacy), 600 at 4 (1992) (constitutional privacy), 478 at 2 (1987) (statutory confidentiality). Therefore, the governor may not withhold any portion of G-Con's information under section 552.101 of the Government Code.

Section 552.101 encompasses section 6103(a) of title 26 of the United States Code, which makes tax return information confidential. ⁽⁷⁾ Attorney General Opinion H-1274 (1978) (tax returns); Open Records Decision No. 600 (1992) (W-4 forms). Section 6103(b) defines the term "return information" as a taxpayer's "identity, the nature, source, or amount of his income[.]" See 26 U.S.C. § 6103(b)(2)(A). Federal courts have construed the term "return information" expansively to include any information gathered by the Internal Revenue Service regarding a taxpayer's liability under title 26 of the United States Code. See Mallas v. Kolak, 721 F. Supp. 748, 754 (M.D.N.C. 1989), aff'd in part, 993 F.2d 1111 (4th Cir. 1993). Upon review, we find the W-3 form and Form 940 submitted by Trace, which we have marked, constitutes tax return information made confidential by section 6103. Accordingly, the governor must withhold this information under section 552.101 of the Government Code in conjunction with section 6103(a) of title 26 of the United States Code.

Section 552.101 also encompasses the doctrine of common-law privacy, which protects information if it (1) contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. Indus. Found., 540 S.W.2d at 685. To demonstrate the applicability of common-law privacy, both prongs of this test must be established. Id. at 681-82. This office has found personal financial information not relating to a financial transaction between an individual and a governmental body is generally excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 600 (1992) (finding personal financial information to include designation of beneficiary of employee's retirement benefits and optional insurance coverage; choice of particular insurance carrier; direct deposit authorization; and forms allowing employee to allocate pretax compensation to group insurance, health care, or dependent care), 545 (1990) (deferred compensation information, participation in voluntary investment program, election of optional insurance coverage, mortgage payments, assets, bills, and credit history). Upon review, we find the information we have marked in the submitted information of Allied, Lee, Lorimer, NewlyWeds, Torchmark, Samsung, and Santana is highly intimate and embarrassing and of no legitimate concern to the public. Accordingly, the governor must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy. However, none of the remaining information is highly intimate or embarrassing and of no legitimate concern to the public. Accordingly, the governor may not withhold any of the remaining information under section 552.101 of the Government Code in conjunction with common-law privacy.

Fidelity raises section 552.102(a) of the Government Code. Section 552.102(a) excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Gov't Code § 552.102(a). Section 552.102(a) protects information relating to public officials and employees. See Open Records Decision No. 345 (1982). In this instance, the information at issue relates to a private entity. Therefore, the governor may not withhold any portion of Fidelity's information under section 552.102(a) of the Government Code.

AHP and Ruiz raise section 552.104 of the Government Code. Section 552.104 excepts from required public disclosure "information which, if released, would give advantage to a competitor or bidder." Gov't Code § 552.104(a). Section 552.104, however, is a discretionary exception that protects only the interests of a governmental body, as distinguished from exceptions that are intended to protect third-party interests. See Open Records Decision Nos. 592 (1991) (statutory predecessor to section 552.104 designed to protect interests of governmental body in competitive situation, and not interests of private parties submitting information to government), 552 (1989) (discretionary exceptions in general). As the governor does not seek to withhold any of the submitted information under section 552.104, we find this exception is not applicable, and the governor may not withhold any portion of AHP's or Ruiz's information on that basis.

Santana raises section 552.147 of the Government Code for social security numbers in its submitted information. Section 552.147 provides, "[t]he social security number of a living person is excepted from" required public disclosure under the Act. Gov't Code §552.147. The governor may withhold the social security numbers we have marked under section 552.147 of the Government Code. ⁽⁸⁾

In summary, the governor must withhold the information we have marked under section 552.110(b) of the Government Code. The governor must withhold the information we have marked under section 552.101 of the Government Code in conjunction with section 6103 of title 26 of the United States Code and in conjunction with common-law privacy. The governor may withhold the social security numbers we have marked under section 552.147 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,

Neal Falgoust

Assistant Attorney General

Open Records Division

NF/agn

Ref: ID# 431881

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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