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February 2, 2000

Mr. W. Lane Lanford
Executive Director
Public Utility Commission of Texas
1701 N. Congress Avenue
Austin, Texas 78711



OR2000-344

Dear Mr. Lanford:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 131807.

The Public Utility Commission of Texas (the "commission") received a written request for "Southwestern Bell's 1998 Access Line data." You have submitted to this office as responsive to the request a document entitled "Southwestern Bell Telephone Access Lines Report December 31, 1999" ("Access Line Report"), which Southwestern Bell submitted to the commission pursuant to PUC Substantive Rule 26.73(b)(4). You do not argue that the requested information is excepted from required public disclosure, but rather have requested a decision from this office pursuant to section 552.305 of Government Code, which authorizes parties with a privacy or proprietary interest in requested information to submit arguments to this office as to why the information is excepted from required public disclosure.

Southwestern Bell has submitted arguments to this office for withholding the information at issue. Specifically, Southwestern Bell contends that the information at issue is protected from public disclosure 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 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. Southwestern Bell has made arguments against disclosure under both branches of section 552.110.

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 at 2 (1990). 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.(1) Id. 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). We have reviewed Southwestern Bell's arguments under the trade secret branch of section 552.110 and conclude that Southwestern Bell has not made a prima facie showing that the Access Line Report is a trade secret for purposes of section 552.110. Consequently, none of the information at issue may be withheld as "trade secret" information.

As noted above, Southwestern Bell also argues that the information at issue is excepted from disclosure under the commercial or financial branch of section 552.110. The commercial or financial branch of section 552.110 requires the business enterprise whose information is at issue to make a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would result from disclosure. See Open Records Decision No. 661 (1999).

Basically, Southwestern Bell contends that because the information at issue reveals the scope of its customer base by geographic area and implicitly provides "an empirical basis for evaluation of the relative success of [its] service deployment," the release of this information would provide competitors a substantial competitive benefit in selecting geographic markets to target and to avoid. Southwestern Bell has not explained, however, how such a benefit to its competitors would necessarily result in "substantial competitive harm" to its marketplace interests. After reviewing Southwestern Bell's arguments, we conclude that Southwestern Bell has not shown, based on specific factual evidence, that disclosure of the Access Line Report would cause substantial competitive harm to Southwestern Bell. Accordingly, the commission must release the information at issue.

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,

Amanda Crawford
Assistant Attorney General
Open Records Division

AEC/RWP/nc

Ref.: ID# 131807

cc: Ms. Ann Shelfer
Supra Telecom
1311 Executive Center Drive, Suite 200
Tallahassee, Florida 32301-5022

(w/o enclosures)

Mr. Gary L. Buckwalter

Senior Counsel

Southwestern Bell Telephone

1616 Guadalupe Street

Austin, Texas 78701

(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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