June 20, 2012

Ms. Kathleen Decker

Director

Litigation Division

The Texas Commission on Environmental Quality

P.O. Box 13087

Austin, Texas 78711-3087

OR2012-09498

Dear Ms. Decker:

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# 456720 (TCEQ PIR No. 12.03.30.11).

The Texas Commission on Environmental Quality (the "commission") received a request for all documents from testing, sampling, and field results related to a specified tank located at the NuStar Logistics, LP facility on a specified date, as well as information about the laboratory where the previously mentioned information was sent, the field inspector, the field inspector's contact information, and environmental clean-up reports. You state there was no information responsive to parts of this request. We note the Act does not require a governmental body to release information that did not exist when a request for information was received or to prepare new information in response to a request. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266, 267-68 (Tex. Civ. App.--San Antonio 1978, writ dism'd). You state you have made some of the responsive information available to the requestor. You claim that the submitted information is excepted from disclosure under sections 552.101 and 522.110 of the Government Code. You further claim that release of the submitted information may implicate the proprietary interests of NuStar Logistics, LP ("NuStar"). Accordingly, you have notified this third party of the request and of its right to submit arguments to this office as to why the requested information should not be released. See Gov't Code § 552.305(d) (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permitted governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under the circumstances). We have considered the exceptions you claim 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 exception encompasses information made confidential by other statutes, such as section 382.041 of the Health and Safety Code, which provides "a member, employee, or agent of the commission may not disclose information submitted to the commission relating to secret processes or methods of manufacture or production that is identified as confidential when submitted." Health & Safety Code § 382.041(a). This office has concluded section 382.041 protects information that is submitted to the commission if a prima facie case is established the information constitutes a trade secret under the definition set forth in the Restatement of Torts and if the submitting party identified the information as being confidential when submitting it to the commission. See Open Records Decision No. 652 (1997). You state NuStar marked pages 2 and 3 of the document in Attachment D as confidential when the company provided the information to the commission. ⁽¹⁾ Thus, the marked information in Attachment D is confidential under section 382.041 to the extent this information constitutes a trade secret. Although the commission argues the submitted information is excepted under section 552.110 of the Government Code, that exception is designed to protect the interests of third parties, not the interests of a governmental body. As such, a governmental body may not raise section 552.110 on behalf of a third party. Thus, we do not address the commission's argument under section 552.110.

As of the date of this letter, NuStar has not submitted arguments to this office explaining how any of its information constitutes a trade secret. See Gov't Code § 552.305(d)(2)(B). Therefore, we have no basis to conclude any of NuStar's submitted information in Attachment D constitutes a trade secret. See id. § 552.110; Open Records Decision Nos. 552 at 5 (1990) (party must establish prima facie case information is trade secret), 542 at 3. Consequently, the commission may not withhold any of the submitted information under section 552.101 of the Government Code in conjunction with section 382.041 of the Health and Safety Code. Moreover, because NuStar has failed to submit any arguments to our office, we have no basis to conclude release of any portion of its information would cause the company substantial competitive harm. See Open Records Decision No. 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, release of requested information would cause that party substantial competitive harm). Thus, the commission may not withhold any of the submitted information based on proprietary interests NuStar may have in this information. As no other exceptions to disclosure have been raised, the submitted information must be released.

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,

Kathleen J. Santos

Assistant Attorney General

Open Records Division

KJS/eb

Ref: ID# 456720

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Ms. Tina Proctor

Environmental Manager

NuStar Logistics, L.P.

3033 Marina Bay Drive

League City, Texas 77573

(w/o enclosures)

Footnotes

1. We note information is ordinarily not confidential under the Act simply because the party submitting the information anticipates or requests that it be kept confidential. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976). In other words, a governmental body cannot, through an agreement or contract, overrule or repeal provisions of the Act. See Attorney General Opinion JM-672 (1987); Open Records Decision Nos. 541 at 3 (1990) ("[T]he obligations of a governmental body under [the Act] cannot be compromised simply by its decision to enter into a contract."), 203 at 1 (1978) (mere expectation of confidentiality by person supplying information does not satisfy requirements of statutory predecessor to section 552.110).

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