January 28, 2013

Ms. Ashley D. Fourt

Assistant District Attorney

Tarrant County

401 West Belknap

Fort Worth, Texas 76196-0201

OR2012-17987A

Dear Ms. Fourt:

This office issued Open Records Letter No. 2012-17987 (2012) on November 8, 2012. Since that date, we have received new information that affects the facts on which ths ruling was based. Consequently, this decision serves as the corrected ruling and is a substitute for the decision issued on November 8, 2012. See generally Gov't Code § 552.011 (providing that Office of Attorney General may issue decision to maintain uniformity in application, operation, and interpretation of Public Information Act ("Act")). This ruling was assigned ID # 480747.

The Tarrant County Purchasing Department (the "department") received a request for bidders' responses to a specified request for proposal. You indicate that you will release some information to the requestor upon payment of charges. Although you take no position as to the public availability of the submitted information, you state release of this information may implicate the proprietary interests of third parties. Thus, pursuant to section 552.305 of the Government Code, you notified the third parties of the request and of their right to submit arguments to this office as to why their information should not be released. ⁽¹⁾ 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 received briefs from Healthcare Solutions and from an attorney for Review Med. 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 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 received comments only from Healthcare Solutions and Review Med. Thus, we have no basis to conclude any of the remaining third parties has a protected proprietary interest in any of the submitted information. 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 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 department may not withhold any of the information at issue on the basis of any proprietary interest any of the remaining third parties may have in the information.

Review Med states it marked its information as confidential before submitting it to the department. We note information subject to the Act is not confidential simply because the parties submitting the information anticipate or request that it be kept confidential. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976). In other words, governmental bodies or third-parties 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 predecessor to 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 falls within an exception to disclosure, it must be released, notwithstanding any expectation or agreement to the contrary.

Healthcare Solutions and Review Med raise section 552.110 of the Government Code. Section 552.110 protects the proprietary interests of private parties by excepting from disclosure (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 a "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 defines 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) (citation omitted); 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. ⁽²⁾ This office will accept a claim that information subject to the Act is excepted as a trade secret under section 552.110(a) if a prima facie case for the exception is made, 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. 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. See ORD 661 at 5-6 (business must show by specific factual evidence that release of particular information at issue would cause substantial competitive injury).

Review Med asserts release of portions of its information would cause the company substantial competitive injury. Upon review, we find Review Med has established its customer information and pricing information constitutes commercial or financial information, the release of which would cause substantial competitive injury. Accordingly, the department must withhold this information, which we have marked, under section 552.110(b) of the Government Code. However, we find Review Med has failed to establish by a factual or evidentiary showing that release of the remaining information it seeks to withhold would cause the company substantial competitive injury. See ORDs. 661 at 5-6, 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) Therefore, the department may not withhold any of the remaining information under section 552.110(b).

Healthcare Solutions asserts its CPR Trigger Report, and Review Med asserts portions of its information, constitute protected trade secrets. Based on Healthcare Solutions' representations and our review, we find Healthcare Solutions has established its CPR Trigger Report, which we have marked, constitutes a trade secret. Additionally, based on Review Med's representations and our review, we find Review Med has established portions of its information, including those relating to its billing review methodology and utilization review services software, which we have marked, constitutes trade secrets. Accordingly, the department must withhold this information under section 552.110(a) of the Government Code. We note Review Med has made portions of the information relating to its processes and methodology available on its website. Therefore, we find Review Med has failed to establish that this information constitutes protected trade secrets. Additionally, we find Review Med has failed to demonstrate how any of its remaining information constitutes a trade secret, nor has it demonstrated the necessary factors to establish a trade secret claim for its remaining information. See 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. Therefore, the department may not withhold any of the remaining information under section 552.110(a).

Section 552.136 provides in part that "[n]otwithstanding any other provision of [the Act], a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." ⁽³⁾ Gov't Code § 552.136(b); see id. § 552.136(a) (defining "access device"). This office has determined insurance policy numbers are access device numbers for purposes of section 552.136. Accordingly, the department must withhold the insurance policy numbers we have marked under section 552.136 of the Government Code.

We note some of the submitted information 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.

In summary, the department must withhold the information we have marked under section 552.110 of the Government Code and the insurance policy numbers we have marked under section 552.136 of the Government Code. The remaining information must be released, but any information subject to 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,

Kristi L. Wilkins

Assistant Attorney General

Open Records Division

KLW/ag

Ref: ID# 480747

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Kathryn Hutton

Senior Counsel

Healthcare Solutions

2736 Meadow Church Road, Suite 300

Duluth, Georgia 30097

(w/o enclosures)

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