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April 5, 2000

Mr. John B. Dahill
Advisory Chief
Dallas County District Attorney's Office
411 Elm Street
Dallas, Texas 75202

OR2000-1318

Dear Mr. Dahill:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134181.

Dallas County (the county) received a request for information related to vendors under contract with the county to provide janitorial services. Specifically, the requestor seeks the vendors man hour breakdown and financial statements. You indicate that you will make available to the requestor the vendors work schedules, which you assert are responsive to the request for man hour breakdown information. You claim that the vendors financial statements are excepted from disclosure under sections 552.104 and 552.110 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information.

You inform us that the county notified three vendors of their rights to assert reasons for withholding the requested financial statements. The three vendors are: James Enterprises (James), CTJ Maintenance, Inc. (ACTJ), and Members Building Maintenance, Inc. (Members). You assert that the submitted documents are commercial or financial information excepted from disclosure under section 552.110 of the Government Code. Members also asserts that section 552.110 excepts their financial statement from public disclosure. Neither James or CTJ submitted to this office arguments against public disclosure of its financial statement.

The commercial or financial information prong of section 552.110 requires the governmental body or interested third party to provide a specific factual or evidentiary showing, not a conclusory or generalized allegation, that substantial competitive injury would likely result from disclosure. Govt Code ' 552.110 (b); see also National Parks & Conservation Assn v. Morton, 498 F.2d 765 (D.C. Cir. 1974). The county submitted affidavits from James, CTJ, and Members in support of its argument that the release of the vendors financial statements would impair the countys ability to obtain bids on future projects. Likewise, Members argues that disclosure of its financial statement Awould harm Members and give [its] competitors advantages in future business. Awould prevent Members from participation in future bids for Dallas County and other public bids if [its] confidential financial information would be released to [its] competition. After reviewing the countys argument, we conclude that the county has not shown how release of the submitted information would cause James, CTJ or Members substantial competitive harm. Likewise, we believe Members arguments fail to provide specific factual evidence of how the release of its financial statement would cause Members substantial competitive harm. Further, since we did not received any correspondence from either James or CTJ, we have no basis for concluding that the release of their financial statements would cause them substantial harm. Therefore, the financial statements at issue may not be withheld from required public disclosure under the commercial or financial information prong of section 552.110. See Open Records Decision No. 661 (1999).

The county contends that the submitted information is excepted from disclosure under 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. 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). Governmental bodies may withhold this type of information while the governmental officials are in the process of interpreting the proposals and the competitors are free to furnish additional information. Cf. 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), or where no contract is awarded. Open Records Decision No. 201 (1978). You state that the submitted financial statements were provided as part of a bid to provide janitorial services to the county. You indicate that the financial statements were responsive to the request the county received for documents related to vendors under contract with the county. Based upon these statements, we conclude that you have not established that the competitive process is ongoing with respect to these contracts. Therefore, the financial statements may not be withheld from disclosure under section 552.104. Consequently, in conclusion, the county must release the financial statements to the requestor.

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. Govt 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 bodys 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 generals 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
Carla Gay Dickson
Assistant Attorney General
Open Records Division
(w/o enclosures)

CGD/ch

Ref: ID# 134181

Encl. Submitted documents

cc: David Alexander Via Facsimile: (972) 237-8187


 

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