December 17, 2012

Mr. Robert Ash

Administrator

El Paso City Employees' Pension Fund

2 Civic Center Plaza

El Paso, Texas 79901

OR2012-20283

Dear Mr. Ash:

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# 473777.

The El Paso City Employees' Pension Fund (the "fund") received a request for each proposal submitted in response to the fund's RFP for the management of a private equity fund-of-funds investment management firm. You state you have released some of the requested information to the requestor. Although you take no position on the public availability of the submitted information, you indicate the submitted information may implicate the proprietary interests of third parties. Accordingly, you notified Abbot Capital Management, L.L.C. ("Abbot"); Adams Street Partners, L.L.C. ("Adams Street"); HarbourVest Partners, L.L.C. ("HarbourVest"); Mesirow Financial Private Equity Advisors, Inc. ("Mesirow"); Pantheon Ventures (US) L.P. ("Pantheon"); Partners Group (USA) Inc. ("Partners Group"); Pathway Capital Management, L.L.C. ("Pathway"); and Portfolio Advisors, L.L.C. ("Portfolio Advisors") of the request and of their 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). You have submitted arguments from Abbot, Adams Street, HarbourVest, Mesirow, Pantheon, Partners Group, Pathway, and Portfolio Advisors, and we have received additional comments from an attorney for Pathway. We have considered the submitted arguments and reviewed the submitted information.

HarbourVest informs us that it noted on the cover of its submitted information that the information was "supplied on a confidential basis and should remain within the confines of [the fund]." We note 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 submitted information falls within an exception to disclosure, it must be released, notwithstanding any expectation or agreement to the contrary.

HarbourVest and Pathway raise section 552.101 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. However, HarbourVest and Pathway have not directed our attention to any law, nor are we aware of any law, under which any of the submitted information is considered to be confidential for purposes of section 552.101 of the Government Code. See Open Records Decision Nos. 611 at 1 (1992) (common-law privacy), 600 at 4 (1992) (constitutional privacy), 478 at 2 (1987) (statutory confidentiality).

Next, we note HarbourVest and Partners Group argue against the release of information that was not submitted by the fund. This ruling does not address information that was not submitted by the fund and is limited to the information the fund has submitted for our review. See Gov't Code § 552.301(e)(1)(D) (governmental body requesting decision from attorney general must submit copy of specific information requested).

Next, Adams Street, HarbourVest, and Pathway raise section 552.104 of the Government Code for some of their information. Section 552.104 excepts "information that, if released, would give advantage to a competitor or bidder." Id. § 552.104(a). This exception protects the competitive interests of governmental bodies such as the fund, not the proprietary interests of private parties such as Adams Street, HarbourVest, and Pathway. See Open Records Decision No. 592 at 8 (1991) (discussing statutory predecessor). In this instance, the fund does not raise section 552.104 as an exception to disclosure. Therefore, the fund may not withhold any of the submitted information under section 552.104 of the Government Code.

We note some of the submitted information may be subject to section 552.0225 of the Government Code. Section 552.0225(b) provides as follows:

The following categories of information held by a governmental body relating to its investments are public information and not excepted from disclosure under [the Act]:

(1) the name of any fund or investment entity the governmental body is or has invested in;

(2) the date that a fund or investment entity described by Subdivision (1) was established;

(3) each date the governmental body invested in a fund or investment entity described by Subdivision (1);

(4) the amount of money, expressed in dollars, the governmental body has committed to a fund or investment entity;

(5) the amount of money, expressed in dollars, the governmental body is investing or has invested in any fund or investment entity;

(6) the total amount of money, expressed in dollars, the governmental body received from any fund or investment entity in connection with an investment;

(7) the internal rate of return or other standard used by a governmental body in connection with each fund or investment entity it is or has invested in and the date on which the return or other standard was calculated;

(8) the remaining value of any fund or investment entity the governmental body is or has invested in;

(9) the total amount of fees, including expenses, charges, and other compensation, assessed against the governmental body by, or paid by the governmental body to, any fund or investment entity or principal of any fund or investment entity in which the governmental body is or has invested;

(10) the names of the principals responsible for managing any fund or investment entity in which the governmental body is or has invested;

(11) each recusal filed by a member of the governing board in connection with a deliberation or action of the governmental body relating to an investment;

(12) a description of all of the types of businesses a governmental body is or has invested in through a fund or investment entity;

(13) the minutes and audio or video recordings of each open portion of a meeting of the governmental body at which an item described by this subsection was discussed;

(14) the governmental body's percentage ownership interest in a fund or investment entity the governmental body is or has invested in;

(15) any annual ethics disclosure report submitted to the governmental body by a fund or investment entity the governmental body is or has invested in; and

(16) the cash-on-cash return realized by the governmental body for a fund or investment entity the governmental body is or has invested in.

Gov't Code § 552.0225(b). Abbott, Adams Street, Mesirow, Pantheon, Pathway, and Portfolio Advisors argue some or all of their submitted information is excepted under sections 552.110 and 552.143. ⁽¹⁾ However, the exceptions to disclosure found in the Act, including sections 552.110 and 552.143, do not apply to information that is made public by section 552.0225. See Open Records Decision Nos. 623 at 3 (1994), 525 at 3 (1989). Accordingly, the types of information enumerated in section 552.0225(b) of the Government Code must be released to the requestor.

Section 552.143 of the Government Code provides, in part, the following:

(a) All information prepared or provided by a private investment fund and held by a governmental body that is not listed in Section 552.0225(b) is confidential and excepted from the requirements of Section 552.021.

Gov't Code § 552.143(a). Abbott, Adams Street, Mesirow, Pantheon, Pathway, and Portfolio Advisors state the information they have indicated consists of information prepared and provided by a private investment fund. Abbott, Mesirow, Pathway, and Portfolio Advisors each informs us the information they seek to withhold is not subject to section 552.0225(b). See id. § 552.0225(b) (listing categories of information held by governmental body relating to its investments that are public and not excepted from disclosure under the Act). Based on these representations and our review, we find that, with the exception of information the fund must release pursuant to section 552.0225(b) of the Government Code, the fund must withhold Abbott's, Mesirow's, and Pantheon's submitted information in their entireties and the information indicated by Adams Street, Pathway, and Portfolio Advisors under section 552.143(a) of the Government Code. ⁽²⁾

Section 552.110(b) of the Government Code 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[.]" Id. § 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 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, that release of requested information would cause that party substantial competitive harm).

HarbourVest and Partners Group contend some of their information is commercial or financial information, release of which would cause substantial competitive harm to the companies. Upon review, we find HarbourVest and Partners Group have established that this information constitutes commercial or financial information, the disclosure of which would cause the companies substantial competitive harm. Accordingly, the fund must withhold the information we have marked under section 552.110(b) of the Government Code. ⁽³⁾

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.

In summary, with the exception of information the fund must release pursuant to section 552.0225(b) of the Government Code, the fund must withhold Abbott's, Mesirow's, and Pantheon's submitted information in their entireties and the information indicated by Adams Street, Pathway, and Portfolio Advisors under section 552.143(a) of the Government Code. The fund must withhold the information we have marked under section 552.110(b) of the Government Code. The remaining responsive information must be released; however, 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,

Kathryn R. Mattingly

Assistant Attorney General

Open Records Division

KRM/dls

Ref: ID# 473777

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Abbott Capital Management, L.L.C.

c/o Mr. David W. Tegeler

Partner

Proskauer Rose, L.L.P.

One International Place

Boston, Massachusetts 02110-2600

(w/o enclosures)

Mr. Gary Fencik

Adams Street Partners, L.L.C.

One North Wacker Drive, Suite 2200

Chicago, Illinois 60606-2823

(w/o enclosures)

Ms. Monique A. Austin

Vice President, U.S. Counsel

HarbourVest Partners, L.L.C.

One Financial Center, 44th Floor

Boston, Massachusetts 02111

(w/o enclosures)

Mesirow Financial Private Equity Advisors, Inc.

c/o Ms. Robin A. Painter

Proskauer Rose, L.L.P.

One International Place

Boston, Massachusetts 02110-2600

(w/o enclosures)

Ms. Mita Patel

Legal Counsel

Pantheon Ventures (US) L.P.

Transamerica Center

600 Montgomery Street, 23rd Floor

San Francisco, California 94111

(w/o enclosures)

Mr. Michael Lewis

Mr. Brooks Lindberg

Partners Group (USA), Inc.

1114 Avenue of the Americas, 37th Floor

New York, New York 10036

(w/o enclosures)

Pathway Capital Management, L.L.C.

c/o Ms. Susan G. Conway

Graves, Dougherty, Hearon & Moody, P.C.

P.O. Box 98

Austin, Texas 78767-9998

(w/o enclosures)

Ms. Jesse Eisenberg

General Counsel and Chief Compliance Officer

Portfolio Advisors, L.L.C.

9 Old Kings Highway South

Darien, Connecticut 06820

(w/o enclosures)

Footnotes

1. Although Pantheon does not cite to section 552.143 of the Government, we understand Panthen to raise this exception based on the substance of the company's arguments.

2. As our ruling is dispositive, we need not address the remaining arguments against disclosure of this information.

3. As our ruling is dispositive, we need not address your remaining arguments against disclosure of this information.

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