March 21, 2012

Ms. L. Renee Lowe

Assistant County Attorney

Harris County

2525 Holly Hall, Suite 190

Houston, Texas 77054

OR2012-04162

Dear Ms. Lowe:

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# 448281 (C.A. File No. 11HSP1324).

The Harris County Hospital District (the "district") received a request for "a copy of the contract for Remote Radiology, and proposals from all bidders associated with this purchase." You state the district does not possess the requested contract because the project at issue was canceled. ⁽¹⁾ You state you have redacted insurance policy numbers from the submitted proposals under section 552.136 of the Government Code. ⁽²⁾ Although the district takes no position as to whether the remaining information at issue is excepted under the Act, you state release of this information may implicate the proprietary interests of third parties. Accordingly, you notified Baylor College of Medicine ("Baylor"); Houston Progressive Radiology Associates, P.L.L.C. ("HPRA"); Radiology Reading Centers of America ("Radiology Reading"); and the University of Texas Medical Branch at Galveston ("UTMB") of the request and of their right to submit arguments to this office as to why their information should not be released. See Gov't Code § 552.305(d); 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 to disclosure under Act in certain circumstances). You represent UTMB does not object to the release of its information, and the district has released the information at issue pertaining to UTMB to the requestor. ⁽³⁾ We have received comments from HPRA and Radiology Reading. We have considered the submitted arguments and reviewed the submitted information.

Initially, we note 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, we have not received comments from Baylor explaining why its information at issue should not be released. Therefore, we have no basis to conclude Baylor has a protected proprietary interest in the information at issue. 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. Accordingly, the district may not withhold any of the information at issue on the basis of any proprietary interest Baylor may have in it.

HPRA asserts it proposal is not responsive to the instant request because it was not specifically named in the request. We note, however, the requestor specifically seeks all proposals submitted in response to the Remote Radiology project. HPRA's proposal was submitted in response to that project. Additionally, the district has reviewed its records and has determined HPRA's proposal is responsive to the request. Accordingly, we will address HPRA's arguments against the disclosure of its information at issue.

Radiology Reading asserts release of its owner's resume, physician license, and certificates would subject its owner to identity theft. Thus, we understand Radiology Reading to assert this information is protected under common-law privacy. 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 the doctrine of common-law privacy, which protects information that is (1) highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and (2) not of legitimate concern to the public. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be satisfied. Id. at 681-82. The type of information considered intimate or 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. We note that an individual's name, education, prior employment, and personal information are not ordinarily private information subject to section 552.101. See Open Records Decision Nos. 554 (1990), 448 (1986). Upon review, we determine Radiology Reading has failed to demonstrate that any of the information at issue is intimate or embarrassing and of no legitimate public interest. Therefore, the district may not withhold any portion of the information at issue under section 552.101 in conjunction with common-law privacy.

HPRA claims its information is excepted under section 552.104 of the Government Code. ⁽⁴⁾ Section 552.104 excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't Code § 552.104. Section 552.104, however, is a discretionary exception that protects only the interests of a governmental body, as distinguished from exceptions that are intended to protect the interests of third parties. See Open Records Decision Nos. 592 (1991) (statutory predecessor to section 552.104 designed to protect interests of a governmental body in a competitive situation, and not interests of private parties submitting information to the government), 522 (1989) (discretionary exceptions in general). As the district does not argue section 552.104 is applicable in this instance, we conclude none of HPRA's information may be withheld under section 552.104 of the Government Code. See ORD 592 (governmental body may waive section 552.104).

HPRA and Radiology Reading argue portions of their respective information are protected under section 552.110 of the Government Code, which protects (1) trade secrets, and (2) commercial or financial information, the disclosure of which would cause substantial competitive harm to the person from whom the information was obtained. See Gov't Code § 552.110(a), (b). Section 552.110(a) protects trade secrets obtained from a person and privileged or confidential by statute or judicial decision. Id. § 552.110(a). The Texas Supreme Court has adopted the definition of trade secret from section 757 of the Restatement of Torts. See Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex. 1957); see also ORD 552. 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); see also Huffines, 314 S.W.2d at 776. 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. ⁽⁵⁾ Restatement of Torts § 757 cmt. b. This office must accept a claim information subject to the Act is excepted as a trade secret if a prima facie case for the exception is made and no argument is submitted that rebuts the claim as a matter of law. See ORD 552 at 5. However, we cannot conclude section 552.110(a) is applicable unless it has been shown the information meets the definition of a trade secret and the necessary factors have been demonstrated to establish a trade secret claim. See Open Records Decision No. 402 (1983).

Section 552.110(b) of the Government Code excepts from disclosure "[c]ommercial 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." Gov't Code § 552.110(b). Section 552.110(b) requires a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from release of the requested information. See ORD 661 at 5-6 (business enterprise must show by specific factual evidence that release of information would cause it substantial competitive harm).

HPRA contends its entire proposal constitutes a trade secret. Radiology Reading claims portions of its proposal constitute trade secrets. Upon review, we conclude HPRA and Radiology Reading have failed to demonstrate any of the information at issue meets the definition of a trade secret nor have these companies demonstrated the necessary factors to establish a trade secret claim for this information. We note that pricing information pertaining to a particular contract is generally not a trade secret because it is "simply information as to single or ephemeral events in the conduct of business," rather than "a process or device for continuous use in the operation of the business." See Restatement of Torts § 757 cmt. b; Huffines, 314 S.W.2d at 776. Accordingly, the district may not withhold any of HPRA's or Radiology Reading's information on this basis.

HPRA and Radiology Reading each contend some of their information is commercial or financial information, release of which would cause competitive harm. Upon review, we conclude HPRA and Radiology Reading have established that release of some of their information would cause each company substantial competitive injury. Accordingly, the district must withhold the information we have marked under section 552.110(b). However, we find HPRA and Radiology Reading have not made the specific factual or evidentiary showings required by section 552.110(b) that release of any of their remaining information would cause the companies substantial competitive harm. See Open Records Decision Nos. 319 at 3 (statutory predecessor to section 552.110 generally not applicable to information relating to organization and personnel, market studies, professional references, and qualifications and experience), 175 at 4 (1977) (resumes cannot be said to fall within any exception to the Act). Consequently, the district may not withhold any of the remaining information under section 552.110(b).

We note some of the submitted information appears to be protected by copyright. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Open Records Decision No. 180 at 3 (1977). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id.; see Open Records Decision No. 109 (1975). If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit.

In summary, the district must withhold the information we have marked under section 552.110(b) of the Government Code. The remaining information at issue must be released; however, any information protected by copyright may only be released in accordance with copyright law.

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,

Ana Carolina Vieira

Assistant Attorney General

Open Records Division

ACV/ag

Ref: ID# 448281

Enc. Submitted documents

c: Requestor

(w/o enclosures)

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