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March 1, 2000

Mr. Paul Sarahan
Director
Litigation Division
Texas Natural Resources Conservation Commission
P.O. Box 13087
Austin, Texas 78711-3087

OR2000-0820

Dear Mr. Sarahan:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 132662.

The Texas Natural Resources Conservation Commission ("TNRCC") received a request for information regarding CITGO Refining and Chemicals Company ("CITGO"), TNRCC account number NE-0192-F. You indicate you have released some information responsive to the request. You have provided for our review a representative sample(1) of additional responsive information, marked as attachments "C," "D," and "E." You assert this information is excepted from public disclosure under sections 552.101, 552.103, 552.107, 552.110, and 552.111 of the Government Code. We have reviewed the submitted information and considered the exceptions you assert.

As to the information in attachment "C," among other exceptions, you assert section 552.103 of the Government Code. Section 552.103 excepts from disclosure information:

[R]elating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.

[Information is excepted from disclosure] only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

Gov't Code 552.103. Section 552.103(a) was intended to prevent the use of the Public Information Act as a method of avoiding the rules of discovery in litigation. Attorney General Opinion JM-1048 at 4 (1989). The litigation exception enables a governmental body to protect its position in litigation by requiring information related to the litigation to be obtained through discovery. Open Records Decision No. 551 at 3 (1990). To show that section 552.103(a) is applicable, TNRCC must demonstrate that (1) litigation is pending or reasonably anticipated and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). You do not indicate that litigation is pending. To demonstrate that litigation is reasonably anticipated, TNRCC must furnish evidence that, as of the time of the request, litigation was realistically contemplated and more than mere conjecture. See Gov't Code 552.103(c); Open Records Decision No. 518 at 5 (1989). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986). The information you have provided indicates TNRCC has a pending enforcement action against CITGO in which, at the time of the request, the matter was in the process of settlement negotiations. You represent to this office that, should attempts to negotiate a settlement agreement fail, TNRCC will commence litigation against CITGO. We thus agree that litigation was reasonably anticipated at the time of the request in this instance. Upon review of the information in attachment "C," we additionally find the information relates to the anticipated litigation. We thus determine that you may withhold exhibit "C" in its entirety pursuant to section 552.103.(2) We remind you that the applicability of section 552.103(a) ends once the litigation concludes. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). Because section 552.103 is dispositive as to attachment "C," we do not address your additional assertions as to this information.

You assert the attorney work product aspect of sections 552.103 and 552.111 with respect to the information in attachment "D." A governmental body may withhold attorney work product from disclosure under section 552.111 if it demonstrates that the material was 1) created for trial or in anticipation of civil litigation, and 2) consists of or tends to reveal an attorney's mental processes, conclusions and legal theories. Open Records Decision No. 647 (1996). The first prong of the work product test has two parts. First, a governmental body must demonstrate that a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue. Second, the party resisting discovery or release believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation. Open Records Decision No. 647 at 4 (1996). The second prong of the work product test requires the governmental body to show that the documents at issue tend to reveal the attorney's mental processes, conclusions and legal theories. Having reviewed your arguments and the submitted information, and having considered the totality of the circumstances, we conclude that most of the information in attachment "D" may be withheld as attorney work product. However, attachment "D" contains an interoffice memorandum which consists primarily of factual information. This office has stated that the attorney work product privilege does not extend to "facts an attorney may acquire." See Open Records Decision No. 647 at 4 (1996) (citing Owens-Corning Fiberglass v. Caldwell, 818 S.W.2d 749, 750 n. 2 (Tex. 1991). Nor does the privilege protect documents prepared by an attorney that contain only a "neutral recital" of facts. See Leede Oil & Gas, Inc. v. McCorkle, 789 S.W.2d 686 (Tex. App.--Houston [1st Dist.] 1990, no writ). We have marked for redaction certain information in this document that we believe, if released, would tend to reveal an attorney's mental processes, conclusions or legal theories. You may redact this marked information from the memorandum, but the document is otherwise subject to release.(3) Attachment "D" also contains correspondence from an attorney representing CITGO addressed to TNRCC, which you indicate contains "handwritten attorney notes." We assume these are handwritten notes of a TNRCC attorney. We therefore agree that the handwritten notes, which we have marked for redaction, are excepted from disclosure as attorney work product. Because the remaining information in this document came from the opposing party in the anticipated litigation, this information is not protected as attorney work product.(4) Except as otherwise noted herein, we conclude the remaining information in attachment "D" may be withheld pursuant to section 552.111.

TNRCC and CITGO assert the information in attachment "E" may involve the proprietary or property interest of CITGO, and that this information is therefore excepted from public disclosure under sections 552.101 and 552.110 of the Government Code.(5) Section 552.110(a) excepts from disclosure a "trade secret." A "trade secret" may consist of 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). See also Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex. 1958); Open Records Decision Nos. 255 (1980), 232 (1979), 217 (1978). TNRCC makes no specific arguments to support a finding that the information in attachment "E" is a "trade secret" or is otherwise excepted from required public disclosure. Upon careful review of the information at issue and the arguments submitted by CITGO, we find that the information at issue is not trade secret information. The information consists of measures of emissions outputs of various CITGO facilities, and thus comprises information about "single or ephemeral events in the conduct of [CITGO's] business" and not "a process or device for continuous use in the operation of the business." Thus, none of the information in attachment "E" is excepted from disclosure as trade secret information. See Open Records Decision Nos. 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990).

Besides trade secrets, section 552.110 also excepts from disclosure commercial 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."(6) As explained above in our discussion of attachment "D," attachment "E" contains a copy of a November 19, 1999 correspondence from CITGO to TNRCC. CITGO makes no specific arguments for withholding this information under section 552.110, but CITGO does state:

[T]he first paragraph [of the November 19, 1999 correspondence] expressly indicates that it concerns only CITGO's East Plant, which is at a different location and is assigned a different TNRCC account number. As a result, aside from the points correctly made by [TNRCC] concerning the negotiation and settlement of formal enforcement actions, that letter is outside the scope of the request and should not be considered.

We have no basis to conclude that this correspondence is excepted from disclosure by section 552.110. If, as asserted by CITGO, TNRCC determines that the correspondence is not within the scope of the present request, this information need not be released to the requestor. As to certain other information in attachment "E," which CITGO has marked, CITGO explains:

It is a commonly accepted practice in the refining and chemical industries to maintain as confidential operating information such as material characteristics, production and throughputs related to particular units. Such information may allow competitors to improve their own operations or revise marketing or other competitive strategies to their advantage and to the related disadvantage of the company whose information is disclosed. Accordingly, like other companies in the industry, CITGO restricts and monitors the distribution of such information, and maintains policies and other employee directives that serve to protect its confidentiality.

In carefully reviewing this argument and the information at issue, we believe CITGO has demonstrated the applicability of section 552.110(b) to the specific information. We have marked this information in accordance with CITGO's markings, and determine you must redact the marked information pursuant to section 552.110(b). Except as otherwise provided herein, we conclude the remaining information in attachment "E" is not excepted from disclosure.

In summary, you may withhold the information in attachment "C" in its entirety. The information in attachment "D" is excepted from disclosure, but you must release the documents marked with a red flag and a blue flag. You may redact the marked information from these documents prior to their release. As to attachment "E," only the information we have marked may be withheld, and the remaining information is not excepted from disclosure.

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# 132662

Encl. Submitted documents

cc: Mr. Mike Davis
Slack & Davis
8811 Capitol of Texas Highway, Suite 21110
Austin, Texas 78759

Mr. John B. Turney
Bell, Turney, Coogan & Richards, L.L.P.
823 Congress, Suite 706
Austin, Texas 78701
(w/o enclosures)


 

Footnotes

1. In reaching our conclusion here, we assume that the representative sample of records submitted to this office is 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.

2. We note, however, that if the opposing party in the anticipated litigation has seen or had access to the information at issue, there is no section 552.103(a) interest in withholding such information from the requestor. Open Records Decision Nos. 349 (1982), 320 (1982). We have no indication that CITGO has seen or had access to the information in attachment "C."

3. We have marked this document with a red flag. You assert no other exceptions with reference to this document. See Gov't Code 552.301(e)(2) (the governmental body must label the copy of information or representative samples to indicate which exceptions apply to which parts of the copy).

4. We have marked this document with a blue flag. A copy of this correspondence is also contained in attachment "E," but as discussed below, it is not excepted from disclosure by the exceptions asserted with reference to that attachment. Nevertheless, the correspondence may not be within the scope of information that is responsive to the present request (see below the discussion of the information in attachment "E").

5. TNRCC notified CITGO of the request by a letter dated December 29, 1999, in compliance with section 552.305 of the Government Code. 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). Section 552.101 of the Government Code requires withholding, inter alia, information made confidential by statute. CITGO asserts certain of its information is made confidential by section 552.101 in conjunction with the Texas Clean Air Act, specifically section 382.041 of the Health and Safety Code. This provision requires the same analysis, and excepts the same information, as section 552.110(a) of the Government Code. See Open Records Decision No. 652 (1997). Therefore, we address both assertions by determining whether any of the information at issue contains or consists of trade secrets.

6. Gov't Code 552.110(b). To prevent disclosure of commercial or financial information under this provision, a 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. Id.
 

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