March 26, 2012

Mr. Allan S. Graves

For Tarrant County Hospital District

Adams, Lynch & Loftin, P.C.

3950 Highway 360

Grapevine, Texas 76051-6741

OR2012-04378

Dear Mr. Graves:

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# 448751 (Tarrant County Hospital District File No. 12006).

The Tarrant County Hospital District (the "district"), which you represent, received a request for the contract entered into for Smart Pumps and the proposals from all bidders for that contract. Although you take no position on the public availability of the requested information, you state the requested information may implicate the proprietary interests of a third party. Accordingly, you inform us, and provide documentation showing, you notified Cardinal Health Solutions, Inc. ("Cardinal") of the request and of the company's right to submit comments to this office as to why the requested information should not be released to the requestor. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (determining that 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 the Act in certain circumstances). We have reviewed the submitted information.

Initially, we note you have only submitted information responsive to the portion of the request seeking the contract, and you have not submitted any information responsive to the portion of the request seeking proposals. To the extent information responsive to the remainder of the request existed on the date the district received the request, we assume you have released it. See Open Records Decision No. 664 (2000) (if governmental body concludes that no exceptions apply to requested information, it must release information as soon as possible). If you have not released any such information, you must do so at this time. See Gov't Code §§ 552.301(a), .302.

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 Cardinal on why their the company's submitted information should not be released. Therefore, we have no basis to conclude Cardinal has protected proprietary interests in the submitted information. 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 district may not withhold any portion of the submitted information on the basis of any proprietary interest Cardinal may have in it.

We note some of the information at issue may 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. Therefore, the district must release the submitted information, but 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,

Kathryn R. Mattingly

Assistant Attorney General

Open Records Division

KRM/dls

Ref: ID# 448751

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Ms. Diana Curtis

Manager of Contracts

Cardinal Health Solutions, Inc.

10221 Wateridge Circle

San Diego, California 92121

(w/o enclosures)

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