Click for home page Office of the Attorney General - State of Texas
John Cornyn
image
 

November 4, 1999

Mr. Michael S. Copeland
Assistant City Attorney
City of Denton
215 East McKinney
Denton, Texas 76201

OR99-3218

Dear Mr. Copeland:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 129138.

The City of Denton (the "city") received a request for information "on the status of bids or proposals from the City of Garland for Denton's interest in generation assets and TMPA [Texas Municipal Power Agency] assets and liabilities." You initially argue that the request for information is not a proper request as prescribed by the Public Information Act (the "Act"). In the alternative, you claim that the requested information is protected from required public disclosure by sections 552.104, 552.105, and 552.110 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted sample information.(1)

You first argue that the request for information is not a proper written request as required by the Act. You explain that the request for information was sent via electronic mail to the city's mayor. You argue that the mayor is not the city's officer for public information, nor is he that officer's designee. Section 552.301 of the Government Code provides in part:

(c) A governmental body that receives a written request for information that it wishes to withhold from public disclosure and that it considers to be within one of the exceptions under Subchapter C must ask for a decision from the attorney general about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions. The governmental body must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request. For purposes of this subchapter, a written request includes a request made in writing that is sent to the officer for public information, or the person designated by that officer, by electronic mail or facsimile transmission.

There is no requirement to release information under the Act in the absence of a written request. Open Records Decision Nos. 483 (1987), 304 (1982). A governmental body may require a requestor to submit a request in writing. It follows, therefore, that a governmental body may require electronic mail or facsimile requests for information to be sent to those persons mentioned in the statute. If such requests are not sent properly under section 552.301, they are not "written requests," and the application of the Act is not triggered. If requests are sent to members of the governmental body not designated to receive electronic communications, a governmental body need not treat them as "written requests."

You state that the mayor is not the public information officer. You do not indicate, however, whether the mayor is the chief administrative officer for the city. We note that if the mayor is the city's chief administrative officer, he is the statutorily designated public information officer for the city. Gov't Code 552.201(a) (identifying officer for public information). We also agree with the requestor that based on the information provided on the city's website, a reasonable person would surmise that the mayor is the city's public information officer. Since we conclude that section 552.104 is applicable in this instance, we need not resolve this particular issue at this time. However, we encourage the city to immediately update its website to include the name and contact information for the city's chief administrative officer. The city should also indicate to whom electronic mail requests should be sent.

Section 552.104 protects from required public disclosure "information which, if released, would give advantage to competitors or bidders." Section 552.104 is generally invoked to except information relating to competitive bidding situations involving specific commercial or contractual matters. Open Records Decision No. 463 (1987). Governmental bodies may withhold bid information while governmental officials are in the process of evaluating the proposals and asking competitors to clarify their bids. Open Records Decision No. 170 (1977). Section 552.104 does not, however, except bids or proposals from disclosure once the bidding is over and the contract is in effect. Open Records Decision Nos. 306 (1982), 184 (1978).

You state that the city is in the process of divesting itself of four electric generating facilities. You explain that "if any bidder involved in the bid process were to learn of a competing bidder's indicative bid and/or final bid submitted to [the city], real economic harm and detriment would result." Based on your representations, we conclude that the city may withhold the requested information pursuant to section 552.104. However, once the competitive bidding process is completed and a contract has been executed, the city may not continue to withhold this information under section 552.104. Open Records Decision No. 541 at 5 (1990).

Because we are able to make a determination under section 552.104, we need not address your additional arguments against disclosure. 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,

June B. Harden
Assistant Attorney General
Open Records Division

JBH/ljp

Ref: ID# 129138

Encl. Submitted documents

cc: Mr. Leslie Cook
1709 Charlotte
Garland, Texas 75041
(w/o enclosures)


 

Footnotes

1. We assume that the "sample" records submitted to this office are truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988); 497 (1988). This open records letter does not reach, and, therefore, does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer


Home | ORLs