 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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November 29, 2011 Mr. Kipling D. Giles Senior Counsel CPS Energy P.O. Box 1771 San Antonio, Texas 78296 OR2011-17539 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# 437255. The City Public Service Board of the City of San Antonio d/b/a CPS Energy ("CPS") received a request for information pertaining to the testing or evaluation of LED street lights over a specified time period. (1) You state CPS is releasing some of the requested information. You claim the remaining requested information is excepted from disclosure under sections 552.104 and 552.133 of the Government Code. You also state release of the remaining requested information may implicate the proprietary interests of third parties. Accordingly, you state, and provide documentation showing, you notified Cooper Lighting, Fred Olberlander & Associates, General LED, Inc. ("General"), Green Star LED ("Green Star"), Leotek Lighting, and Spectrum Lighting of the request for information and of their right to submit arguments to this office as to why the submitted 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 General and Green Star. We have considered the submitted arguments and reviewed the submitted representative sample of information. (2) Section 552.133 of the Government Code excepts from disclosure a public power utility's information related to a competitive matter. The Eighty-second Legislature recently amended section 552.133, which now provides, in relevant part: (a) In this section, "public power utility" means an entity providing electric or gas utility services that is subject to the provisions of this chapter. (a-1) For purposes of this section, "competitive matter" means a utility-related matter that is related to the public power utility's competitive activity, including commercial information, and would, if disclosed, give advantage to competitors or prospective competitors. The term: (1) means a matter that is reasonably related to the following categories of information: . . . (E) plans, studies, proposals, and analyses for system improvements, additions, or sales, other than transmission and distribution system improvements inside the service area for which the public power utility is the sole certificated retail provider[.] Act of May 24, 2011, 82nd Leg., R.S., S.B. 1613, § 2 (to be codified as an amendment to Gov't Code § 552.133). Section 552.133(a-1)(2), however, provides fifteen categories of information that are not competitive matters. Id. You state CPS is a public power utility for purposes of section 552.133. You inform us the submitted information pertains to improvements to CPS's system. You explain this improvement is an end-use improvement and is not an improvement to CPS's transmission and distribution system. The information at issue is not among the fifteen categories of information expressly excluded from the definition of "competitive matter" by section 552.133(a-1)(2). Based on our review of your arguments and the submitted information, we find the submitted information relates to a competitive matter as defined under section 552.133(a-1). Thus, we conclude CPS must withhold the submitted information under section 552.133 of the Government Code. As our ruling is dispositive, we need not address CPS's remaining argument against disclosure or the arguments submitted by General and Green Star. 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, Jennifer Luttrall Assistant Attorney General Open Records Division JL/dls Ref: ID# 437255 Enc. Submitted documents c: Requestor (w/o enclosures) General LED, Inc. c/o Mr. Jonathan D. Pauerstein Rosenthal Pauerstein Sandoloski Agather, L.L.P. 755 East Mulberry, Suite 200 San Antonio, Texas 78212 (w/o enclosures) Mr. Gabriel Senior Green Star LED 175 Enterprise Parkway Boerne, Texas 78006 (w/o enclosures) Mr. Dan Redwine Manufacturer Representative Cooper Lighting 427 Breesport San Antonio, Texas 78216 (w/o enclosures) Mr. Jeff Chandler Account Manager/Cooper Lighting Distributor WESCO 4410 Dividend San Antonio, Texas 78219 (w/o enclosures) Mr. Dan Redwine Manufacturer Representative Leotek Lighting 427 Breesport San Antonio, Texas 78216 (w/o enclosures) Ms. Robyn Gregory Leotek Lighting Distributor Techline 4414 Dividend Drive San Antonio, Texas 78219 (w/o enclosures) Mr. Ty Schauer BetaLED Manufacturer Representative Spectrum Lighting 2102 Manix San Antonio, Texas 78217 (w/o enclosures) Mr. Charlie Dupont Account Manager/BetaLED Distributor HD Supply 4447 Centergate San Antonio, Texas 78217 (w/o enclosures) Mr. Mark D. Seehafer GE Lighting Manufacturer Representative Fred Oberlander & Associates 11231 Richmond Avenue, Suite 102D Houston, Texas 77082 (w/o enclosures) Mr. Charlie Dupont Account Manager/GE Lighting Distributor HD Supply 4447 Centergate San Antonio, Texas 78217 (w/o enclosures) Footnotes1. We note CPS asked for and received clarification regarding this request. See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information); see City of Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex. 2010) (holding that when a governmental entity, acting in good faith, requests clarification or narrowing of an unclear or over-broad request for public information, the ten-day period to request an attorney general ruling is measured from the date the request is clarified or narrowed). 2. We assume the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |