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November 16, 2000

Mr. Alberto J. Peña
Assistant City Attorney
City of San Antonio
P.O. Box 839966
San Antonio, Texas 78283-3966

OR2000-4427

Dear Mr. Peña:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 141598.

The City of San Antonio (the "city") received a written request for certain records pertaining to a recent RFP for a fire department Uniform and Personal Protective Equipment Distribution Program. You contend that the requested information is excepted from public disclosure pursuant to section 552.104 of the Government Code. You have also sought a decision from this office pursuant to section 552.305 of the Government Code with regard to any proprietary information that may be contained in the records at issue.

We note at the outset that you did not provide this office with a copy of the written request for the records at issue. Section 552.301 of the Government Code dictates the procedure that a governmental body must follow when it seeks a decision from the attorney general as to whether requested information falls within an exception to disclosure. Among other requirements, the governmental body must submit to this office within fifteen business days of receipt of an information request "a copy of the written request for information." Gov't Code 552.301(e)(1)(B). Otherwise, the requested information "is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information." Gov't Code 552.302. You have not provided this office with compelling reasons for withholding the requested information pursuant to section 552.104; consequently, we deem this exception as being waived. See Gov't Code 552.302.

On the other hand, a demonstration that information comes under the protection of an exception intended to protect a third party's privacy or property interests constitutes a compelling reason for non-disclosure. See, e.g., Open Records Decision No. 150 (1977). You have submitted to this office the two requested proposals. This office has not received, however, any arguments from Premier Emblems as to why their proposal should be withheld from the public. This office therefore has no basis on which to conclude that this proposal is excepted from public disclosure. Consequently, we conclude that the city must release the Premier Emblems proposal in its entirety.

However, this office has received a response from a representative of Martin's Uniforms, arguing that its proposal is excepted from public disclosure under section 552.110 of the Government Code, which protects the property interests of private persons by excepting from disclosure two types of information: (1) trade secrets obtained from a person and privileged or confidential by statute or judicial decision, and (2) commercial or financial 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. Martin's Uniforms contends that both branches of section 552.110 apply to its proposal.

The Texas Supreme Court has adopted the definition of trade secret from section 757 of the Restatement of Torts. Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex.), cert. denied, 358 U.S. 898 (1958); see also Open Records Decision No. 552 at 2 (1990). In determining whether particular information constitutes a trade secret, this office considers the Restatement's definition of trade secret as well as the Restatement's list of six trade secret factors.(1) Id. This office has held that if a governmental body takes no position with regard to the application of the trade secret branch of section 552.110 to requested information, we must accept a private person's claim for exception as valid under that branch if that person establishes a prima facie case for exception and no argument is submitted that rebuts the claim as a matter of law. Open Records Decision No. 552 at 5-6 (1990). The commercial or financial branch of section 552.110 requires the business enterprise whose information is at issue to make a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would result from disclosure. See Open Records Decision No. 661 (1999); see also Nat'l Parks and Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).

After reviewing the section 552.110 arguments and the records at issue, we conclude that Martin's Uniforms has not made an adequate demonstration to this office that its proposal is confidential for purposes of section 552.110. The only specific argument that Martin's Uniforms makes with regard to its proposal is that "release of this information would essentially enable a competitor to simply duplicate Martin's price and technical proposal in any future competition." Although Martin's Uniform explained the steps it has taken to safeguard its proposal from public scrutiny, it did not attempt to explain how any of the remaining factors for trade secret protection apply to its proposal. We therefore conclude that the city must release the Martin's Uniform proposal, as well as all of the remaining requested information, 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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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,

Nathan E. Bowden
Assistant Attorney General
Open Records Division

NEB/RWP/ljp

Ref: ID# 141598

Encl. Submitted documents

cc: Mr. Cliff Gallarneau
Regional Sales Manager
Lion Apparel
1033 Eagle Court
DeSoto, Texas 75115
(w/o enclosures)

Mr. Jeffrey A. Lovitky
Attorney at Law
1133 Connecticut Avenue, N.W., Suite 1000
Washington, D.C. 20036
(w/o enclosures)

Mr. Vernon Thompson
President
Premier Emblem
7106 N.E. Loop 410
San Antonio, Texas 78239
(w/o enclosures)


 

Footnotes

1. The six factors that the Restatement gives as indicia of whether information constitutes a trade secret are: "(1) the extent to which the information is known outside of [the company]; (2) the extent to which it is known by employees and others involved in [the company's] business; (3) the extent of measures taken by [the company] to guard the secrecy of the information; (4) the value of the information to [the company] and [its] competitors; (5) the amount of effort or money expended by [the company] in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others." Restatement of Torts 757 cmt. b (1939); see also Open Records Decision Nos. 319 at 2 (1982), 306 at 2 (1982), 255 at 2 (1980).
 

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