March 7, 2012

Ms. Cary Grace

Assistant City Attorney

City of Austin

P.O. Box 1088

Austin, Texas 78767-8828

OR2012-03424

Dear Ms. Grace:

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# 447136.

The City of Austin (the "city") received a request for a copy of the real property appraisal associated with the purchase of a specific conservation easement. You claim that the submitted information is excepted from disclosure under section 552.104 of the Government Code. You also state the proprietary interests of certain third parties might be implicated. Accordingly, you notified Rollert Avery Companies, Inc.; Ascentia; and Woodview MHC, LLLP of the request and of their right to submit arguments to this office explaining why their 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 received comments from a law firm representing Woodview MHC, LLLP. We have reviewed the submitted information and considered the submitted arguments.

Section 552.104 of the Government Code excepts from required public disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't Code § 552.104(a). The purpose of section 552.104 is to protect the purchasing interests of a governmental body in competitive bidding situations where the governmental body wishes to withhold information in order to obtain more favorable offers. See Open Records Decision No. 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). Section 552.104 protects information from disclosure if the governmental body demonstrates potential harm to its interests in a particular competitive situation. See Open Records Decision No. 463 (1987). Generally, section 552.104 does not except bids from disclosure after bidding is completed and the contract has been executed. See Open Records Decision No. 541 (1990). However, in some situations, section 552.104 will operate to protect from disclosure bid information that is submitted by successful bidders. See id. at 5 (recognizing limited situation in which statutory predecessor to section 552.104 continued to protect information submitted by successful bidder when disclosure would allow competitors to accurately estimate and undercut future bids).

You state on August 18, 2011, the Austin City Council approved negotiation and execution of all documents and instruments necessary to acquire conservation easements from property owners of a specific mobile home park. You further state that because the acquisition has not closed, the city is still considered to be in negotiations with the owners and issues could arise that could alter the conditions of the contract or terminate the contract up to the time of closing. You contend that until the closing occurs, release of the requested appraisal report would interfere with the city's interests as a buyer in this situation because the city's ability to buy these easements at a fair market value will be compromised. Based on your representations and our review, we agree the city may withhold the submitted information under section 552.104 of the Government Code until such time as a contract has been executed. As our ruling is dispositive, we do not address the remaining arguments against disclosure.

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,

Jeffrey W. Giles

Assistant Attorney General

Open Records Division

JWG/dls

Ref: ID#447136

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Woodview MHC, LLLP

c/o Mr. Stephen L. Brown

Stephen L. Brown, P.C.

19590 East Mainstreet, Suite 107

Parker, Colorado 80138

(w/o enclosures)

Mr. Seth Rollert

Rollert Avery Companies, Inc.

17757 East Crestridge Place

Centennial, Colorado 80015

(w/o enclosures)

Mr. Boris Vukovich

Ascentia

2 West Dry Creek Circle, Suite 200

Littleton, Colorado 80120-4479

(w/o enclosures)

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer