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March 9, 2000

Mr. Quincy Quinlan
Associate General Counsel
Texas Association of Counties
P.O. Box 2131
Austin, Texas 78768-2131

OR2000-0961

Dear Mr. Quinlan:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Texas Government Code. Your request was assigned ID#132789.

The Texas Association of Counties ("TAC ") and the County Government Risk Management Pool ("the Pool"), a self-insurance pool administered by TAC, received a request from the Parker County Judge for documents and information related to the Pool's coverage of Parker County's public officers. You claim that the requested information is excepted from disclosure under sections 552.104 and 552.107 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Item one of the request seeks disclosure of "the basis for calculating the Public Official's Premium for Parker County." You assert that the information is excepted from required public disclosure based on section 552.104 of the Government Code.

Section 552.104 protects from required public disclosure "information that, if released, would give advantage to a competitor or bidder." The purpose of section 552.104 is to protect the government's interests when it is involved in certain commercial transactions. For example, section 552.104 is generally invoked to except information submitted to a governmental body as part of a bid or similar proposal. See, e.g., Open Records Decision No. 463 (1987). In these situations, the exception protects the government's interests in obtaining the most favorable proposal terms possible by denying access to proposals prior to the award of a contract. When a governmental body seeks protection as a competitor, however, we have stated that it must be afforded the right to claim the "competitive advantage" aspect of section 552.104 if it meets two criteria. The governmental body must first demonstrate that it has specific marketplace interests. Open Records Decision No. 593 at 4 (1991). Second, a governmental body must demonstrate actual or potential harm to its interests in a particular competitive situation. See Open Records Decision Nos. 593 at 2 (1991), 463 (1987), 453 at 3 (1986). A general allegation of a remote possibility of harm is not sufficient to invoke section 552.104. Id. at 2. Whether release of particular information would harm the legitimate marketplace interests of a governmental body requires a showing of the possibility of some specific harm in a particular competitive situation. Id. at 5, 10.

The Pool is authorized by statute to engage in competition in the marketplace. See Local Gov't Code 119.002, 119.004 - 119.006. Section 119.005 establishes a board of trustees to govern, administer, and operate the risk management fund. This board determines premium rates and coverage limits to ensure that the Pool remains actuarially sound. Id. You assert "[o]ther intergovernmental risk pools, as well as private insurance carriers, compete with the Pool to provide liability coverage for Texas counties and other governmental entities." The Pool competes with approximately a dozen entities nationwide to provide governmental bodies' insurance coverage, with multiple competitors bidding for any given county's, or other governmental body's, business. It is your contention that release of the requested information "would likely result in the Pool being underbid by competitors . . ." because the requested information would reveal the Pool's basis for calculating member contributions, its underwriting formula. Private entities need not release such proprietary information and would gain a competitive advantage over the Pool were the information released.

After reviewing your arguments, we conclude TAC has established that release of the requested information could cause specific harm to its marketplace interests in its particular competitive situation. Accordingly, we conclude that TAC may withhold the information specified in Item One from the requestor based on section 552.104 of the Government Code. A governmental body may transfer information to another governmental body subject to the Public Information Act without violating the confidentiality of the information or waiving exceptions to disclosure. See Attorney General Opinion H-917 at 1 (1976); Open Records Decision No. 661 at 3 (1991). Therefore, you may release the information to the governmental requestor without implicating the Act's prohibition against selective disclosure. See Attorney General Opinion JM-119 at 2 (1983).

By its eighth item, the requestor seeks disclosure of settlement information relating to a lawsuit against the county sheriff. You assert the information is protected from disclosure by Government Code section 552.107(2) because the information is subject to a court order in the matter of Bleeker v. Sheriff Brown, No. 4-97CV-063-E (N.D. Tex.). Section 552.107(2) excepts from required public disclosure information if "a court by order has prohibited disclosure of the information." You urge that you are prohibited by court order from disclosing the settlement records. You have provided to this office an order from the United States District Court for the Northern District of Texas, Fort Worth Division, entitled ORDER SEALING RECORDS, dated October 29, 1999, sealing the records of that lawsuit. You have also included a clarifying order in the same case dated January 14, 2000, which contains the following language:

In clarification, if such be necessary, the Court considers Movants [TAC & the Pool] to be subject to the terms, conditions, and provisions of the Order Sealing Records in this case. In this way, any disclosure by Movants of any records pertaining to this litigation would be contrary to the Court's Order Sealing Records in this matter.

The court granted protection to all the records involved in the settlement of the dispute in its Order Sealing Records.(1) To the extent this order applies to the requested items held by TAC, section 552.107(2) provides an exception from required disclosure.(2)

The information listed in Item 8, though subject to disclosure, must be withheld pursuant to court order under section 552.107(2).

You argue that items 2 through 7 should be withheld from disclosure based on the court order. These items relate to the claims and settlement history for Parker County from 1994 onward. Your argument is that, though Items 2 through 7 are not directly addressed in any court order of confidentiality, by virtue of their relationship with Item 8, they should be withheld from disclosure because the requestor "already has certain information concerning claims payments made on its behalf by the Pool that, with the additional information requested by the County, would allow it to calculate the amount of the Bleeker settlement," which, you assert, would violate the terms and the intent of the federal court's order. You have not explained how this calculation could be performed.

The Texas Supreme Court dealt with a similar question in A & T Consultants, Inc., v. Sharp, 904 S.W.2d 668 (Tex. 1995). In that case, the comptroller argued that A & T's staff could deduce confidential information about taxpayers by combining knowledge about certain changes in the law with information about franchise taxpayers that the comptroller would otherwise release to the public. The court concluded that the Tax Code does not preclude the release of otherwise public information because someone can make deductions from it in light of publicly known changes in the law. Id. at 676. Further, in Star-Telegram, Inc. v.

Doe, 915 S.W.2d 471 (Tex. 1995), the court concluded that the defendant newspaper was not liable for public disclosure of embarrassing private facts even though a rape victim's acquaintances could identify her by deduction from the paper's release of otherwise public information.

Most of the information requested in Items 2 through 7 is not directly addressed by the Bleeker court order. The fact that the requestor might deduce the settlement agreement terms by piecing together otherwise public information is not a basis for nondisclosure. You must disclose the requested information in Items 2 through 7 not expressly addressed by the court order. You may withhold the information requested in Item 1 and you must withhold the information requested Item 8.

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 Dep't 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,

Kay H. Hastings
Assistant Attorney General
Open Records Division

KHH/CHS/ljp

Ref: ID# 132789

Encl. Submitted documents

cc: Honorable Mark Riley
Parker County Judge's Office
1 Courthouse Square
Weatherford, Texas 76086
(w/o enclosures)


 

Footnotes

1. "The order states that except by further order of the Court, none of the records pertaining to this litigation may be disclosed to any third-party, or referred to by any party to the instant litigation."

2. The 76th Legislature amended section 552.022 of the Government Code to provide several categories of information that are not excepted from required disclosure unless they "are expressly confidential under other law." Settlement agreements to which a government body is a party must be released pursuant to section 552.022(a)(18). Moreover, Government Code section 552.022(b) forbids a Texas court to seal a settlement order. However, the information responsive to this request is not the settlement agreement itself, but information related to it. Therefore, we conclude sections 552.022(a)(18) and 552.022(b) are not controlling.
 

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