February 21, 2012

Mr. Bob Davis

Assistant General Counsel

Office of the Governor

P.O. Box 12428

Austin, Texas 78711

OR2012-02609

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# 447878 (OOG ID# 653-11).

The Office of the Governor (the "governor's office") received a request for information concerning a 2006 grant from the Texas Enterprise Fund to Trace Engines ("Trace") including Trace's original proposal, evaluation, original and amended contracts, and compliance reports. You state the governor's office has released some of the information. You also state the governor's office will withhold certain information pursuant to our rulings in Open Records Letter Nos. 2011-14353 (2011), 2010-7377A (2010), and 2009-08319A (2009). ⁽¹⁾ 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). You claim some of the information submitted in Exhibits B and C is excepted from disclosure under section 552.101 of the Government Code. Although you take no position with respect to the public availability of the remaining requested information, you state the proprietary interests of Trace might be implicated. Accordingly, you notified Trace of the request and of the company's right to submit arguments to this office explaining why its information should not be released. 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 considered the exception you claim and reviewed the submitted information.

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 Gov't Code § 552.305(d)(2)(B). As of the date of this letter, we have not received arguments from Trace. Thus, Trace has 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 OOG may not withhold any of the submitted information on the basis of any proprietary interests this third party may have in the 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. Section 552.101 encompasses section 6103(a) of title 26 of the United States Code, which makes tax return information confidential. ⁽²⁾ 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 forms in Exhibit B constitute tax return information made confidential by section 6103. Accordingly, the governor's office 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. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be established. Id. at 681-82.

The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. This office has found that personal financial information not related to a financial transaction between an individual and a governmental body is intimate and embarrassing and of no legitimate public interest. See Open Records Decision Nos. 600 (1992), 545 (1990), 523 (1989), 373 (1983) (sources of income not related to financial transaction between individual and governmental body protected under common-law privacy).

Upon review, we find Exhibits C and D contain personal financial information that is intimate or embarrassing and of no legitimate public interest. Accordingly, the governor's office must withhold the information we have marked in Exhibits C and D under section 552.101 of the Government Code in conjunction with common-law privacy. However, you have failed to demonstrate how any of the remaining information you have marked in Exhibit C is highly intimate or embarrassing and not of legitimate public interest. Therefore, none of the remaining information may be withheld under section 552.101 of the Government Code in conjunction with common-law privacy.

In summary, the governor's office must withhold under section 552.101 of the Government Code (1) the W-3 forms in Exhibit B in conjunction with section 6103(a) of title 26 of the United States Code, and (2) the information we have marked in Exhibits C and D in conjunction with common-law privacy. The remaining submitted information must be released to the requestor.

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,

Cindy Nettles

Assistant Attorney General

Open Records Division

CN/dls

Ref: ID# 447878

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Trace Engines

c/o Mr. Bob Davis

Assistant General Counsel

Office of the Governor

P.O. Box 12428

Austin, Texas 78711

(w/o enclosures)

Footnotes

1. In those rulings, this office concluded the governor's office must withhold certain information related to the Texas Enterprise Fund and several third parties, including Trace, under sections 552.101, 552.110, 552.111, 552.131, and 552.137 of the Government Code, and may withhold social security numbers under section 552.147 of the Government Code.

2. The Office of the Attorney General will raise mandatory exceptions but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

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