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July 30, 1999

Ms. Mary Keller
Senior Associate Commissioner
Legal and Compliance Division
Texas Department of Insurance
P.O. Box 149104
Austin, Texas 78714-9104

OR99-2142

Dear Ms. Keller:

You ask whether certain information is subject to required public disclosure under the Texas Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 126174.

The Texas Department of Insurance (the "department") received a request for documents relating to Standard Insurance Company ("Standard") of Portland, Oregon. You state that you have released some of the requested documents. Although you do not take a position on whether the release of the remaining documents would implicate Standard's proprietary interests, you raise section 552.305 of the Government Code on Standard's behalf. You have submitted the documents at issue to this office for review.

We notified Standard of the request for information. See Gov't Code 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Public Information Act in certain circumstances). Standard responded by claiming that the submitted documents, with the exception of the outside tax counsel opinion letters, are excepted from disclosure as trade secrets under section 552.110 of the Government Code.

Section 552.110 protects the property interests of private persons by excepting from disclosure two types of information: (1) trade secrets and (2) commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision. The Texas Supreme Court has adopted the definition of trade secret from section 757 of the Restatement of Torts. Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex.), cert. denied, 358 U.S. 898 (1958); see also Open Records Decision No. 552 (1990) at 2. Section 757 provides that a trade secret is

    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 single or ephemeral events 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) (emphasis added). 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. Restatement of Torts 757 cmt. b (1939).(1) This office has held that if a governmental body takes no position with regard to the application of the trade secret branch of section 552.110 to requested information, we must accept a private person's claim for exception as valid under that branch if that person establishes a prima facie case for exception and no argument is submitted that rebuts the claim as a matter of law. Open Records Decision No. 552 at 5-6 (1990).

Having carefully considered Standard's arguments, we find that Standard has established that most of the submitted documents are trade secrets. The February 7, 1997 letter to the department and the outside tax counsel opinion letters are not excepted from disclosure under section 552.110 and must be released. The department must withhold the remaining documents (Addenda A, C, and part of D) from disclosure under the trade secret prong of section 552.110. We have marked the documents accordingly.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Karen E. Hattaway
Assistant Attorney General
Open Records Division

KEH/ch

Ref: ID# 126174

Encl. Marked documents

cc: Ms. Stacey S. Dawes
Lash & Goldberg
100 Southeast 2nd Street, Suite 1200
Miami, Florida 33131-2100
(w/o enclosures)

Mr. James E. Poland
Manager and Senior Attorney
Standard Insurance Company
1100 S.W. Sixth Avenue
Portland, Oregon 97204-1093
(w/o enclosures)


 

Footnotes

1. The six factors that the Restatement gives as indicia of whether information constitutes a trade secret are:

    (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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