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July 18, 2000

Mr. John Steiner
Division Chief
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546

OR2000-2711

Dear Mr. Steiner:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137138.

The City of Austin (the "city") received a request for a list of all commercial and industrial accounts charged a sales tax, including the customers' names, account numbers, service addresses, bill amounts, sales tax amount, and telephone numbers. You claim that the requested information is excepted from disclosure under sections 552.101, 552.104, and 552.110 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of the information at issue.(1)

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. 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.

You explain that the responsive information consists of a list of commercial customers of Austin Energy, the city's municipally-owned electric utility. You state that Austin Energy is authorized to compete in the electric utility industry due to city ordinance 980513-C. You also explain that the electric utility industry is extremely competitive and that utilities' customer lists are generally "a high-priority target" of competing utility company marketers. Therefore, you argue, release of the requested list of customer information would significantly disadvantage Austin Energy competitively.

Based on your arguments and our review of the submitted representative sample, we find that you have demonstrated that the city, through Austin Energy, has specific marketplace interests, and therefore, we believe that Austin Energy may be considered a "competitor" for purposes of section 552.104. See Open Records Decision No. 593 (1987). Furthermore, we conclude that you have shown that release of the requested information will bring about a specific harm to Austin Energy's marketplace interest. Accordingly, the city may withhold the submitted information under section 552.104. Because we are able to make a determination under section 552.104, we do not address the city's additional arguments.(2)

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,

E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division

EJF\nc

Ref: ID# 137138

Encl: Submitted documents

cc: Ms. Kathy Bautista
Marketing Manager
Utility Consultants, Inc.
1303 E. Beltline Rd., Ste. 102
Carrollton, Texas 75006
(w/o enclosures)


 

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of all of the information at issue. 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 those submitted to this office.

2. We note that the requestor has relayed to us that she does not wish to harm the city's competitive interests and seeks guidance from this office as to what sort of arrangement it might obtain the requested information without allowing it to fall into the hands of Austin Energy's competitors. This office is unable to advise the requestor in this regard, as the purpose of this ruling is to determine whether the requested information must be released under the Public Information Act not only to the requestor, but to the public at large. See Gov't Code 552.223, 552.301.
 

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