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August 31, 2000

Ms. Anne M. Constantine
Legal Counsel
Dallas/Fort Worth International Airport
P. O. Drawer 619428
DFW Airport, Texas 75261-9428

OR2000-3379

Dear Ms. Constantine:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 138970.

The Dallas/Fort Worth International Airport (the "airport") received a request for copies of the bid proposals of Marsh USA, Inc. ("Marsh") and Aon Risk Services of Texas ("Aon") for best and final pricing as well as their initial responses to the RFQ for Broker Management Services-Controlled Insurance Program on AIP Project Contract No. 8500159. You state that Aon has no objections to the release of its proposal. Although you do not raise an exception to disclosure on behalf of the airport, you advise this office that the requested information may involve the proprietary or property interests of Marsh and, therefore, the airport is asking this office for a decision under section 552.305(a) of the Government Code. You have submitted a copy of a letter notifying Marsh about the request as required by section 552.305(d). 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 exceptions to the Public Information Act in certain circumstances).

Pursuant to section 552.301(b), a governmental body must ask for a decision and state the exceptions that apply no later than the tenth business day after the date of receiving the written request. Gov't Code 552.301(b). You failed to request a decision within the tenth business day period mandated by section 552.301(b). Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See Gov't Code 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code 552.302); Open Records Decision No. 319 (1982). However, the assertion of sections 552.101 and 552.110 provides a compelling reason to overcome the presumption of openness. See Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests).

As of the date of this letter, Marsh has not submitted to this office its reasons explaining why the requested information should not be released. However, Marsh did send a letter to the airport claiming that portions of the bid proposal are confidential and contain trade secrets or commercial or financial information. However, the letter to the airport does not explain how the information constitutes a trade secret or commercial or financial information. See Gov't Code 552.110(b)(to prevent disclosure of commercial or financial information, 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); Open Records Decision Nos. 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990). Therefore, we conclude that Marsh has failed to demonstrate that the submitted information should be excepted from disclosure under section 552.110. Thus, the airport must release the submitted information pertaining to Marsh 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. 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,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB\er

Ref: ID# 138970

Encl: Submitted documents

cc: Mr. M. Douglas Hardy
Willis Corroon Corp. of Texas
One Galleria Tower
13355 Noel Road, Suite 400
Dallas, Texas 75240-6643
(w/o enclosures)

cc: Mr. William E. Hammond
Senior Vice President
Marsh USA, Inc.
1601 Elm Street, Suite 2100
Dallas, Texas 75201
(w/o enclosures)


 

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