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January 21, 2000

Mr. W. Lane Lanford
Executive Director
Public Utility Commission of Texas
P.O. Box 13326
Austin, Texas 78711-3326

OR2000-0206

Dear Mr. Lanford:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131337.

The Public Utility Commission of Texas (the "commission") received a request for information related to the testing of the Operations Support Systems ("OSS") of Southwestern Bell Telephone ("SWB") by a consultant. The requestor seeks the following:

1.) documents containing the raw data utilized by the consultant or the commission in the preparation of reports to the commission, with the identity of the submitting entity redacted,

2.) documents related to the comparison between measurement data collected by the consultant and measurement data reported by SWB which is referenced in the final report to the commission, and

3.) documents that identify which OSS components evaluated in the testing were created, modified, marketed, or provided to SWB by the consultant.

The requestor further clarified that it "seeks raw performance data only to the extent it relates to transactions involving [SWB] and the test participants as a part of the [consultant's] test." The commission advises the final report contains responsive information and is available to the public.(1) You have provided for our review information held by the commission, which you assert is excepted from disclosure by sections 552.101 and 552.110 of the Government Code. The consultant holds other responsive information, which the commission, SWB, and the consultant assert is not subject to the Public Information Act (the "Act"). Alternatively, this information is asserted to be excepted from disclosure by sections 552.101 and 552.110. We have reviewed the information you have submitted and considered the submitted arguments.

You explain SWB applied to enter the inter Local Area Transport Area (interLATA) market. Although approval is ultimately determined by the Federal Communications Commission ("FCC"), the FCC relies upon the recommendation of the commission. A relevant criterion is whether SWB has "proven its openness to local competition." As an offer of proof, SWB agreed to pay for testing of its OSS. The commission selected a consultant, Telcordia Technologies ("Telcordia"), to perform the testing. The commission, SWB, and Telcordia entered into a contract in which the commission directed the testing, SWB paid all expenses,(2) and Telcordia performed the testing. In performing the testing, Telcordia gathered raw data and other information from SWB and various competitors of SWB, some of which is responsive to the present request. A threshold question is thus whether this information is "public information" under chapter 552 of the Government Code. In relevant part, section 552.002 provides that "public information" means information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it. Gov't Code 552.002(a). The Act does not ordinarily require a governmental body to obtain information that is not in its possession. Open Records Decision Nos. 445 (1986), 317 (1982). In some instances, however, the act does apply to information collected or maintained by third party consultants or contractors of governmental bodies. See, e.g., Open Records Decision No. 462 (1987). This office considers the following three factors in determining whether such information is subject to the Public Information Act:

1. whether the information relates to the governmental body's official duties or business;

2. whether the consultant acts as agent of the governmental body in collecting the information; and

3. whether the governmental body has or is entitled to access to the information.

Open Records Decision No. 462 (1987). The specific information at issue consists of that information responsive to the request and held by Telcordia but not provided to the commission. As to the first factor, we believe this information relates to the official duties or business of the commission. Telcordia gathered the information under a contractual arrangement in which the commission was a party and for the purpose of testing SWB's openness to local competition, a criterion the commission must investigate in order to make its recommendation to the FCC. We do not believe, however, that the second and third factors are met here. In similar facts in which a city hired a consultant to perform a management study of one of its departments and the city then received a request for the source information of the consultant, we stated:

There is in this instance no dispute about whether the final report submitted to the city by its consultant is subject to required disclosure. Indeed, you have stated that the city has made this report available for public inspection. This is also not a situation in which the city employed an agent to perform a task that the city itself would otherwise have been obligated to perform, or in which the consultant actually prepared the information in question at the request or under the direction of the city. . . . Finally, this is not a case involving a governmental entity that assembled information and then gave that information to an outside entity in order to circumvent the disclosure requirements of the act. On the contrary, you have stated that the contract between the city and its consultant called for the city to receive only a "comprehensive written report," that the city never possessed the requested information, that it does not know the contents of that information, and that it "is not contractually entitled to receive the same."

Open Records Decision No. 445 at 2 (1986). Like the situation above, Telcordia provided the commission a final report as required by the contract, the commission has made that report available for public inspection, the commission never possessed the information at issue, and the commission is not entitled to receive the information under the terms of the contract. Open Records Decision Nos. 445 (1986), 462 (1987), 499 (1988) (the factor of whether a consultant acts as an agent of a governmental body is ordinarily determined from the terms of the contract). Pursuant to the contract, the commission is entitled to only the status reports, master test plan, and a final report of the findings. The contract does not provide for the commission's access to any raw data collected by Telcordia. Telcordia's actions in gathering the source data it used to create its reports to the commission were not tasks the commission would otherwise have been obligated to perform. As you state, the commission "did not seek a third party consultant to perform the [c]ommission's work. SWB offered the results of testing by a neutral third party to show that its OSSs were ready for entrance into the interLATA market." The facts additionally indicate the commission acted in its regulatory and investigative capacity as director of the process "to ensure [its] integrity and neutrality." We thus conclude the information possessed by Telcordia and not provided to the commission is not "public information" for purposes of section 552.002(a)(2) of the Government Code. This information is therefore not subject to the Act.(3)

We next address the responsive information held by the commission and provided for our review. Attachment "F" to the commission's correspondence to this office dated November 22, 1999 consists of documents submitted to the commission by SWB. Attachments "A," "B," "C," and "D" to the commission's correspondence to this office dated November 24, 1999 consist of documents submitted to the commission by MCIWorldCom ("MCI").(4) We assume these five attachments comprise the entirety of the responsive information held by the commission.(5) See Gov't Code 552.301(e)(1)(D) (a governmental body must submit within 15 days to the attorney general, inter alia, a copy of the specific information requested or representative samples).

The commission first asserts this information is excepted from disclosure by section 552.101 of the Government Code in conjunction with section 52.207 of the Utilities Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Section 52.207 of the Utilities Code states:

(a) In conjunction with the commission's authority to collect and compile information, the commission may collect a report from a holder of a:

(1) certificate of operating authority; or

(2) service provider certificate of operating authority.

(b) The commission shall maintain the confidentiality of information contained in a report collected under this section that is claimed to be confidential for competitive purposes. The confidential information is exempt from disclosure under Chapter 552, Government Code.

(c) To protect the confidential information, the commission shall aggregate the information to the maximum extent possible considering the purpose of the proceeding.

This provision is found in subchapter E of the Public Utility Regulatory Act pertaining to deregulation of telecommunications utilities. The subchapter generally provides for the deregulation of the price of a telecommunications service for a given geographic market following an investigation by the commission and a finding that the dominant carrier is no longer dominant for the service in that market. See Util. Code 52.201 (the commission may deregulate after notice and hearing), 52.202 (the commission shall consider market conditions), 52.203 (criteria for determining whether to deregulate), 52.204 (a deregulated carrier may set its price at any amount above its long run incremental cost), 52.205 (a dominant carrier may apply for deregulation, and the commission has authority to hold a hearing, subpoena witnesses or documents, and make findings), 52.206 (the commission may re-regulate where a carrier is found to again be dominant). The information at issue was not obtained by the commission in the context of subchapter E. However, the commission essentially argues that section 52.207 makes confidential any information obtained by the commission from a holder of a certificate of operating authority or a service provider certificate of operating authority where the information is claimed to be confidential for competitive purposes. We do not agree that this provision makes confidential such a broad class of information. The statutory predecessor to section 52.207 is substantially similar, and was originally enacted by the Seventy-fourth legislature in the form of H.B. 2128.(6) This 1995 provision was codified as subsection (g) of section 3.2572 of article 1446c-O of Vernon's Texas Civil Statutes. In relevant part, section 3.2572 stated:

(a) Notwithstanding any other provision of this Act, on notice and hearing, the commission may grant price deregulation of a specific service in a particular geographic market if the commission determines that the incumbent local exchange company or certificate of operating authority holder that is a dominant provider is no longer dominant as to that specific service in that particular geographic market. For purposes of this section only, in determining a particular geographic market , the commission shall consider economic and technical conditions of the market. Once a service in a particular market is price-deregulated under this section, the incumbent local exchange company or certificate of operating authority holder that is a dominant provider may set the rate for the deregulated service at any level above the service's LRIC.

* * *

(e) On request of an incumbent local exchange company or certificate of operating authority holder that is a dominant carrier in conjunction with an application under this section, the commission shall conduct investigations to determine the existence, impact, and scope of competition in the particular geographic and service markets at issue and in connection therewith may call and hold hearings, may issue subpoenas to compel the attendance of witnesses and the production of papers and documents, has any other powers, whether specifically designated or implied, necessary and convenient to the investigation, and may make findings of fact and decisions with respect to those markets.

(f) The parties to the proceeding shall be entitled to use the results of the investigation required to be conducted under subchapter (e) of this section in an application for pricing flexibility.

(g) In conjunction with its authority to collect and compile information, the commission may collect reports from a holder of a certificate of operating authority or service provider certificate of operating authority. Any information contained in the reports claimed to be confidential for competitive purposes shall be maintained as confidential by the commission, and the information is exempt from disclosure under Chapter 552, Government Code. The commission shall aggregate the information to the maximum extent possible considering the purpose of the proceeding to protect the confidential nature of the information.

The Seventy-fifth Legislature recodified section 3.2572, with some revisions, at sections 52.201 through 52.207 of the Utilities Code.(7) This 1997 recodification was intended to be nonsubstantive. See Util. Code 1.001. Given that subsection (e) grants the commission broad authority to gather and compile information, and that subsection (f) entitles the parties to access to this information, we believe subsection (g) is intended to apply to such information. Accordingly, we find that the legislature intended section 52.207 to apply to information gathered by the commission only in the context of subchapter E. Thus, we conclude section 552.101 of the Government Code in conjunction with section 52.207 of the Public Utility Regulatory Act does not operate to make confidential the information at issue.

The commission next asserts the information at issue is excepted from disclosure by section 552.110 of the Government Code. Section 552.110 protects the interests of third parties by excepting from disclosure two types of information: (1) trade secrets, and (2) certain commercial or financial information. SWB and MCI are among the third parties the commission notified of the present request in accordance with section 552.305(d) of the Government Code. See Gov't Code 552.305(d) (procedure for notifying third parties whose privacy or proprietary interests may be affected by a public information request). Both SWB and MCI submitted briefs to this office. MCI advises it has no objection to the release of the above-referenced attachments "A" through "D." Hence we conclude that the information from MCI held by the commission that is responsive to the request is not excepted from disclosure by section 552.110. See Gov't Code 552.110(b) (to prevent disclosure of commercial or financial information, party must show by specific factual or evidentiary material, not conclusory or generalized allegations, that it actually faces competition and that substantial competitive injury would likely result from disclosure); Open Records Decision Nos. 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990).

SWB states that it has no objection to the release of its documents "as long as certain confidential information is redacted from them, as described by the commission." With respect to a report from a five state area, the commission states that "SWB does not object to release of the data if customer names and identifying information are redacted." With respect to two other documents which the commission advises contain test data, the commission states that SWB "has asserted that the AECN and the PON numbers are proprietary." The commission does not otherwise explain how the information is a trade secret, nor does the commission establish that substantial competitive injury to SWB would likely result from disclosure of this information. In its affidavits submitted to this office, SWB addresses only the information it submitted to Telcordia. The affidavits specifically state that SWB's information provided to Telcordia was "not provided to the [c]ommission or to any other party" involved in the testing. The customer names, identifying information, AECN numbers, and PON numbers at issue were clearly information that SWB provided to the commission. We therefore cannot assume that the facts set forth in the affidavits pertain to the information SWB provided to the commission. Accordingly, SWB has also failed to established a prima facie case that the information at issue is a trade secret. Because SWB additionally has not otherwise explained to this office how the information at issue, if released, would likely result in substantial competitive injury, we determine this information is not excepted from disclosure by section 552.110. As no other exceptions are asserted with regard to this information, we further conclude the information must be released.

This letter ruling is limited to the particular records 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 records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Michael Garbarino
Assistant Attorney General
Open Records Division

MG/jc

Ref: ID# 131337

Encl. Submitted documents

cc: Mr. Mark Witcher
AT &T
919 Congress Avenue, Suite 900
Austin, Texas 78701-2444
(w/o enclosures)

Mr. Michael S. Slomin
Telcordia Technologies Inc.
445 South Street
Morristown, N.J. 07960-6438
(w/o enclosures)

Ms. Kelly Murray
Southwestern Bell Telephone Company
1616 Guadalupe, Room 600
Austin, Texas 78701
(w/o enclosures)

Mr. Alfred R. Herrera
MCI Worldcom
701 Brazos, Suite 600
Austin, Texas 78701
(w/o enclosures)


 

Footnotes

1. We thus assume this information has been provided to the requestor.

2. Because the contract did not involve any expenditure of public funds, there is no issue here of whether Telcordia, a private corporation, may be deemed a "governmental body" for purposes of the Act. See Gov't Code 552.003(1)(A)(x).

3. The requestor, AT&T, contends that it is entitled to its own information that it submitted to Telcordia for purposes of the testing. We note that such disclosure is governed by the terms of the contract, which provides that Telcordia shall either return any confidential information to the submitting party upon completion of the services or, if requested in writing, destroy such information.

4. You also advise attachment "D" is a "public document." We thus assume this information has been released to the requestor.

5. You state the information submitted to the commission "may be responsive to the request." We assume for purposes of this ruling that the information is responsive to the request.

6. Act of May 16, 1995, 74th Leg., R.S., ch. 231, 31, 1995 Tex. Gen. Laws 2017, 2038-39.

7. Act of May 8, 1997, 75th Leg., R.S., ch. 166, 1, sec. 52.207, 1997 Tex. Gen. Laws 713, 804.
 

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