December 20, 2011

Ms. Jordan Hale

Assistant Attorney General

Assistant Public Information Coordinator

General Counsel Division

Office of the Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

OR2011-18776

Dear Ms. Hale:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 439535 (PIR No. 11-31825).

The Office of the Attorney General (the "OAG") received a request for the records regarding the office deliveries contract issued in September 2011. The OAG released information pertaining to the requestor's company, Flex Express, Inc., and takes no position as to disclosure of the remaining information. Because release of the information may implicate the proprietary interests of Action Courier & Logistics, LLC ("Action Courier"); C&D Couriers, Inc.; Reliable Couriers; and Speedway Delivery, the OAG notified the companies of the request and of their right to submit arguments to this office as to why their information should not be released. Gov't Code § 552.305(d) (permitting third party with proprietary interest to submit to attorney general reasons why requested information should not be released).

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, only Action Courier has submitted arguments to this office asserting why its information should not be released. We thus have no basis to conclude release of the information will harm the other companies' proprietary interests. 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). Accordingly, the OAG may not withhold the other companies' information based on any proprietary interests they may have.

First, Action Courier states it believed when it submitted its information "that it would remain confidential." However, information is not confidential under the Public Information Act (the "Act") simply because the party submitting the information anticipates or requests that it be kept confidential. Indus. Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). In other words, a governmental body cannot, through an agreement or contract, overrule or repeal provisions of the Act. Attorney General Opinion JM-672 (1987); Open Records Decision No. 541 at 3 (1990) ("[T]he obligations of a governmental body under [the predecessor to the Act] cannot be compromised simply by its decision to enter into a contract."). Consequently, unless the information at issue falls within an exception to disclosure, it must be released, notwithstanding any agreement specifying otherwise.

Next, Action Courier seeks to withhold its information under section 552.110 of the Government Code. Section 552.110(a) protects the property interests of private persons by excepting from disclosure trade secrets obtained from a person and privileged or confidential by statute or judicial decision. The Texas Supreme Court has adopted the definition of trade secret from section 757 of the Restatement of Torts. Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex.), cert. denied, 358 U.S. 898 (1958); see also Open Records Decision No. 552 at 2 (1990). Section 757 provides that a trade secret is

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). 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. Restatement of Torts § 757 cmt. b (1939). ⁽¹⁾ This office has held that if a governmental body takes no position with regard to the application of the trade secret branch of section 552.110 to requested information, we must accept a private person's claim for exception as valid under that branch if that person establishes a prima facie case for exception and no argument is submitted that rebuts the claim as a matter of law. Open Records Decision No. 552 at 5-6 (1990).

Section 552.110(b) excepts from public disclosure 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. The interested third party raising section 552.110(b) must provide a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from disclosure. Gov't Code § 552.110(b); see also Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974).

After reviewing Action Courier's arguments, we find it failed to establish a prima facie case that its information constitutes a trade secret under section 552.110(a). Furthermore, Action Courier's arguments are conclusory, generalized assertions that substantial competitive injury would likely result from disclosure. Thus, because Action Courier did not make a specific factual or evidentiary argument regarding the competitive harm should its information be released, we conclude it failed to demonstrate the applicability of section 552.110(b).

We note the submitted information includes information subject to section 552.136 of the Government Code, which states "[n]otwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Gov't Code § 552.136(b). "Access device" is an account number, personal identification number, electronic serial number, mobile identification number, or other instrument identifier or means of account access that alone or in conjunction with another access device may be used to 1) obtain money, goods, services, or another thing of value or 2) initiate a transfer of funds other than a transfer originated solely by paper instrument. Id. § 552.136(a). Accordingly, the OAG must withhold the insurance policy numbers we marked under section 552.136. ⁽²⁾

In summary, the OAG must withhold the insurance policy numbers we marked under section 552.136 of the Government Code. The OAG must release the rest of the information.

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,

Yen-Ha Le

Assistant Attorney General

Open Records Division

YHL/sdk

Ref: ID# 439535

Enc: Marked documents

c: Requestor

(w/o enclosures)

Ms. Darlene Clayton

President

Action Courier & Logistics, LLC

4930 Dacoma Road, Suite K

Houston, Texas 77092

(w/o enclosures)

Mr. Tommy Toombs

C&D Couriers, Inc.

13707 Gamma Road

Dallas, Texas 75244

(w/o enclosures)

Ms. Liz Rodriguez

Reliable Couriers

2797 Irving Boulevard, Suite 110

Dallas, Texas 75207

(w/o enclosures)

Mr. Paul Cartwright

Speedway Delivery

3800 North Lamar, Suite 730-105

Austin, Texas 78756

(w/o enclosures)

Footnotes

1. The six factors that the Restatement gives as indicia of whether information constitutes a trade secret are:

(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 (1939); see also Open Records Decision Nos. 319 at 2 (1982), 306 at 2 (1982), 255 at 2 (1980).

2. We note on September 1, 2011, the Texas legislature amended section 552.136 to allow a governmental body to redact the information described in section 552.136(b) without the necessity of seeking a decision from the attorney general. Gov't Code § 552.136(c). If a governmental body redacts such information, it must notify the requestor in accordance with section 552.136(e). Id. § 552.136(d), (e). Therefore, a governmental body may redact information subject to section 552.136(b) only in accordance with section 552.136.

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