September 21, 2012

Mr. Michael J. Cosentino

City Attorney

City of San Marcos

630 East Hopkins

San Marcos, Texas 78666

OR2012-15106

Dear Mr. Cosentino:

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# 465832.

The City of San Marcos (the "city") received a request for specified bid sheets for IFB 212-047 submitted by three named companies. ⁽¹⁾ Although you take no position on whether the requested information is excepted from disclosure, you state release of portions of this information may implicate the proprietary interests of PSC Environmental Services, LLC ("PSC"). Accordingly, you have notified PSC 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 reviewed the submitted information.

Initially, we note you have not submitted information responsive to the portion of the request for the bid sheets submitted by Stericycle Specialty Waste Solutions and EQ Dallas. To the extent information responsive to this portion of the request existed when the city received the request for information, 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.

Next, we note a portion of the submitted information, which we have marked, is not responsive to the instant request because it does not consist of the specified bid sheets. This ruling does not address the public availability of non-responsive information, and the city need not release such information in response to this request.

An interested third party is allowed ten business days after the date of its receipt of the governmental body's notice to submit its reasons, if any, as to why information relating to that party should not be released. See Gov't Code § 552.305(d)(2)(B). As of the date of this ruling, we have not received comments from PSC. Thus, we have no basis to conclude PSC has a protected proprietary interest in any of the information at issue. See id. § 552.110(a)-(b); 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 the 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 city may not withhold any of the information at issue on the basis of any proprietary interest PSC may have in the submitted information. As no exceptions to disclosure have been raised, the city must release the responsive information.

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,

Kristi L. Wilkins

Assistant Attorney General

Open Records Division

KLW/ag

Ref: ID# 465832

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Mr. Keith Crow

PSC Environmental Services, LLC

4050 Homestead Road

Houston, Texas 77028

(w/o enclosures)

Footnotes

1. In his request, the requestor specifies that he is seeking section 4 of the IFB, pages 9-13.

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