August 24, 2012

Ms. Jennifer Hurley

Counsel for the North Texas Accountable Healthcare Partnership

Thompson & Knight LLP

One Arts Plaza

1722 Routh Street, Suite 1500

Dallas, Texas 75201-2533

OR2012-13485

Dear Ms. Hurley:

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# 463278.

The North Texas Accountable Healthcare Partnership (the "partnership"), which you represent, received a request for the contract with Orion Health Inc. ("Orion") for a Health Information Exchange Infrastructure and all proposals from bidders associated with this purchase. Although you take no position as to whether the submitted information is excepted under the Act, you inform us that release of this information may implicate the proprietary interests of eighteen interested third parties: Orion; MEDecision, Inc. ("MEDecision"); Relay Health; AT&T; Medicity, Inc.; Dell & Microsoft; Axolotl Corporation; HIE Link, LLC; ACS State Healthcare, LLC; eClinical Works; MediBank International; Sandlot; DFWHC Foundation; InterSystems Corporation; Axway Inc.; Mirth Corporation; Your Doctor Program, L.P.; and Thomsom Reuters. Accordingly, you state, and provide documentation demonstrating, the partnership notified these third parties of the request for information and of their right to submit arguments to this office as to why the submitted information should not be released. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Act in certain circumstances). We have received comments submitted by Orion and MEDecison. We have considered the submitted arguments and reviewed the submitted information.

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, only Orion and MEDecision have submitted comments to this office explaining why their submitted information should not be released. Therefore, we have no basis to conclude that the remaining third parties have a protected proprietary interest 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. Accordingly, the partnership may not withhold any portion of the information pertaining to the third parties that have not submitted comments to this office on the basis of any proprietary interest those companies may have in the information.

Next, we address Orion's argument that some of its information should not be disclosed because of a confidentiality agreement. Information is not confidential under the Act simply because the party that submits 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 overrule or repeal provisions of the Act through an agreement or contract. 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). Consequently, unless the information at issue falls within an exception to disclosure, it must be released, notwithstanding any expectation or agreement to the contrary.

Orion raises section 552.101 of the Government Code for its submitted information. Section 552.101 excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. However, Orion has not pointed to any statutory confidentiality provision, nor are we aware of any, that would make any of the submitted information confidential for purposes of section 552.101. See, e.g., Open Records Decision Nos. 611 at 1 (1992) (common-law privacy), 600 at 4 (1992) (constitutional privacy), 478 at 2 (1987) (statutory confidentiality). Therefore, the partnership may not withhold any of the submitted information under section 552.101 of the Government Code.

Orion and MEDecision claim some of their information is excepted from disclosure under section 552.110 of the Government Code. This section protects the proprietary interests of private parties by excepting from disclosure two types of information: (1) "[a] trade secret obtained from a person and privileged or confidential by statute or judicial decision," and (2) "commercial 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(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 a "trade secret" from section 757 of the Restatement of Torts, which holds a "trade secret" to be

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 a single or ephemeral event 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 Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex. 1958). This office will accept a private person's claim for exception as valid under section 552.110(a) if that person establishes a prima facie case for the exception, and no one submits an argument 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. ⁽¹⁾ Open Records Decision No. 402 (1983).

Section 552.110(b) protects "[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). This exception to disclosure requires a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from release of the information at issue. Id.; see also ORD 661 at 5-6 (business enterprise must show by specific factual evidence that release of information would cause it substantial competitive harm).

Orion and MEDecision assert some of their information is protected by section 552.110(a). Upon review, we find Orion and MEDecision have not demonstrated how any of their information meets the definition of a trade secret. See Restatement of Torts § 757 cmt. b (1939) (trade secret "is not simply information as to single or ephemeral events in the conduct of the business"); ORDs 402 (section 552.110(a) does not apply unless information meets definition of trade secret and necessary factors have been demonstrated to establish trade secret claim), 319 at 3 (information relating to organization and personnel, professional references, market studies, qualifications, and pricing not ordinarily excepted from disclosure under statutory predecessor to section 552.110). Consequently, the partnership may not withhold any of Orion's or MEDecision's information under section 552.110(a) of the Government Code.

Orion and MEDecision claim some of their information is protected by section 552.110(b). Upon review, we find MEDecision has established release of the pricing information we have marked would cause it substantial competitive injury. Therefore, the partnership must withhold the information we have marked under section 552.110(b) of the Government Code. However, we find Orion and MEDecision have made only conclusory allegations that release of their remaining information would result in substantial harm to their competitive positions and have provided no specific factual or evidentiary showing to support such allegations. See ORD 661 (for information to be withhold under commercial or financial information prong of section 552.110, business must show by specific factual evidence that substantial competitive injury would result from release of particular information at issue); see also ORD 319 at 3 (information relating to organization and personnel, professional references, market studies, qualifications, and pricing are not ordinarily excepted from disclosure under statutory predecessor to section 552.110). Furthermore, we note Orion was a winning bidder in this instance and the pricing information of a winning bidder is generally not excepted under section 552.110(b). This office considers the prices charged in government contract awards to be a matter of strong public interest. See Open Records Decision No. 514 (1988) (public has interest in knowing prices charged by government contractors); see generally Dep't of Justice Guide to the Freedom of Information Act 344-45 (2009) (federal cases applying analogous Freedom of Information Act reasoning that disclosure of prices charged government is a cost of doing business with government). Therefore, the partnership may not withhold any of Orion's or MEDecision's remaining information under section 552.110(b) of the Government Code.

We note that some of the submitted information is 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 partnership must withhold the information we have marked under section 552.110(b) of the Government Code. The partnership must release the remaining submitted information; however, any information subject to copyright only may 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,

Sean Opperman

Assistant Attorney General

Open Records Division

SO/som

Ref: ID# 463278

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Mr. Doug Renz

Relay Health

1145 Sanctuary Parkway, Ste. 200

Alphretta, Georgia 30009

(w/o enclosures)

Mr. Shawn Frazier

AT&T / Covisint

1116 Houston Street, RM 1307

Fort Worth, Texas 76102

(w/o enclosures)

Ms. Jamie Pickle

Medicity

56 East Broadway

Salt Lake City, Utah 84111

(w/o enclosures)

Mr. Timothy Collins

Dell / Microsoft

One Microsoft Way

Redmond, Washington 98052

(w/o enclosures)

Mr. Edie Hagens

Axolotl

160 West Santa Clara

San Jose, California 95113

(w/o enclosures)

Mr. Huzaifa Jamali

HIE Link

415 Airport Freeway, Ste. 248

Irving, Texas 75062

(w/o enclosures)

Mr. Andy Lydens

ACS / ICA

9040 Roswell Road, Ste. 700

Atlanta, Georgia 30350

(w/o enclosures)

Ms. Alicia Cusato

eClinical Works

2 Technology Drive

Westborough, Massachusetts 01581

(w/o enclosures)

Mr. Sam Ahn

MediBank International

c/o Thompson & Knight LLP

One Arts Plaza

1722 Routh Street, Ste. 1500

Dallas, Texas 75201-2533

(w/o enclosures)

Ms. Telly Shackleford

Sandlot

1701 River Run, Ste. 200

Fort Worth, Texas 76107

(w/o enclosures)

Ms. Kristin Jenkins

DFW HC Foundation

250 Decker Drive

Iriving, Texas 75062

(w/o enclosures)

Mr. Phil Leamon

InterSystems Corp.

1 Memorial Drive, 8^th Floor

Cambridge, Massachusetts 02142

(w/o enclosures)

Mr. Jay Fogarty

Axway

1600 Riveredge Parkway # 925

Atlanta, Georgia 30328

(w/o enclosures)

Mr. Jon Teichrow

Mirth

18831 Von Karman Avenue, Ste. 300

Irvine, California 92612

(w/o enclosures)

Ms. Kim Dunn

Your Doctor Program

6800 West Loop South, Ste. 180

Houston, Texas 77087

(w/o enclosures)

Mr. Russell Fankhauser

Thomson Reuters

1007 Church Street, Ste. 700

Evanston, Illinois 60201

(w/o enclosures)

Mr. Christopher M. Mensoian

Senior Legal Counsel

Orion Health Inc.

Ste. 750, 10 Post Office Square

Boston, Massachusetts 02109

(w/o enclosures)

Mr. John K. Edwards

Jackson Walker L.L.P.

100 Congress Ave., Ste. 1100

Austin, Texas 78701

(w/o enclosures)

Footnotes

1. The Restatement of Torts lists the following six factors as indicia of whether information constitutes a trade secret:

(1) the extent to which the information is known outside of [the company];

(2) the extent to which it is known by employees and others involved in [the company's] business;

(3) the extent of measures taken by [the company] to guard the secrecy of the information;

(4) the value of the information to [the company] and [its] competitors;

(5) the amount of effort or money expended by [the company] in developing the information;

(6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

Restatement of Torts § 757 cmt. b (1939); see also Open Records Decision Nos. 319 at 2 (1982), 306 at 2 (1982), 255 at 2 (1980).

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