 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 6, 2012 Mr. Bob Davis Assistant General Counsel Office of the Governor P.O. Box 12428 Austin, Texas 78711 OR2012-00238 Dear Mr. Davis: 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# 441701 (OOG #629-11). The Office of the Governor (the "governor") received a request for copies of all contracts relating to the Texas Enterprise Fund and the Emerging Technology Fund ("ETF") since its inception until the date of the request. You state you have released some of the requested information, including information pertaining to the Texas Enterprise Fund. You claim the remaining information is excepted from disclosure under section 552.101 of the Government Code. You also state that release of the remaining information may implicate the interests of numerous third parties. Accordingly, you state the governor notified these third parties of the request for information and of their right to submit arguments stating why their information should not be released. (1) See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); 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 considered the submitted arguments and reviewed the submitted information. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information protected by other statutes. Section 490.057 of the Government Code addresses the confidentiality of certain information pertaining to the ETF. See id. § 490.057; see generally id. § 490.101; id. §§ 490.102-.103. Section 490.057 provides: (a) Except as provided by Subsection (b), information collected by the governor's office, the [Texas Emerging Technology Advisory Committee (the "committee")], or the committee's advisory panels concerning the identity, background, finance, marketing plans, trade secrets, or other commercially or academically sensitive information of an individual or entity being considered for, receiving, or having received an award from the fund is confidential unless the individual or entity consents to disclosure of the information. (b) The following information collected by the governor's office, the committee, or the committee's advisory panels under this chapter is public information and may be disclosed under [the Act]: (1) the name and address of an individual or entity receiving or having received an award from the fund; (2) the amount of funding received by an award recipient; (3) a brief description of the project that is funded under this chapter; (4) if applicable, a brief description of the equity position that the governor, on behalf of the state, has taken in an entity that has received an award from the fund; and (5) any other information designated by the committee with the consent of: (A) the individual or entity receiving or having received an award from the fund, as applicable; (B) the governor; (C) the lieutenant governor; and (D) the speaker of the house of representatives. Id. § 490.057. The governor states all of the information in the submitted contracts was collected by the governor or the committee. We note the parties at issue have received an ETF award. Additionally, the governor asserts the contracts contain details of the companies' business plans, milestones, financial structure, background, finance, marketing plans, trade secrets, and other commercially or academically sensitive information and, therefore, is confidential under section 490.057 and must be withheld from release pursuant to section 552.101 of the Government Code. Furthermore, the governor states none of these parties have consented to release of their information. Based upon the governor's representations and our review, we find the information at issue concerns the identity, background, finance, marketing plans, trade secrets, or other commercially or academically sensitive information of entities that received an award from the ETF. However, we note that any information listed in section 490.057(b) is public information and must be released. Therefore, with the exception of information that is subject to public release under section 490.057(b), we conclude the governor must withhold the submitted information under section 552.101 of the Government Code in conjunction with section 490.057(a). Although some of the third parties assert arguments under sections 552.104, 552.110, and 552.131 of the Government Code for some of the information at issue, we note general exceptions to disclosure under the Act, such as sections 552.104, 552.110, and 552.131, do not apply to information made public by other statutes. See, e.g., Open Records Decision Nos. 623 at 3 (1994) (exceptions in Act inapplicable to information statutes expressly made public), 544 (1990), 378 (1983), 161 (1977), 146 (1976). Accordingly, with the exception of information that is subject to public release under section 490.057(b), we conclude the governor must withhold the submitted information under section 552.101 of the Government Code in conjunction with section 490.057(a). 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, Paige Lay Assistant Attorney General Open Records Division PL/ag Ref: ID# 441701 Enc. Submitted documents cc: Requestor (w/o enclosures) All third parties (w/o enclosures)
1. We have received comments from: Apaxis Medical Inc.; Corhythm Inc.; Fe3 Medical, Inc. (formerly
Fe2, Inc.); G-Con, LLC; Gradalis, Inc.; LaserGen, Inc.; Mirna Therapeutics, Inc.; Monebo Technologies, Inc.;
Neurolink, Inc.; Patton Surgical Corporation; PLx Pharma, Inc.; Seno Medical Instruments, Inc.; Speer Medical
Devices, Inc.; Stellarray; Terapio Corporation; Terrabon; Texas A&M Health Science Center College of
Medicine at Scott & White; The University of Texas System; ViroXis Corporation; and Xitronix Corporation.
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