|Office of the Attorney General - State of Texas
December 5, 2000
Mr. Patrick W. Lindner
Dear Mr. Lindner:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 141811.
The Eagle Pass Water Works System ( "Eagle Pass Water"), which you represent, received a request for 1) all documents related to any communications, proposals, or applications related to the sale or transfer of water by Texas Eco-Water Systems Inc. ("Texas-Eco") or Hillco Partners to any local government, including but not limited to Eagle Pass Water and the City of Eagle Pass and 2) all documents related to any communications, proposals, or applications related to the funding of the methods of transfer of water to Eagle Pass Water or the City of Eagle Pass. You claim that the requested information is excepted from disclosure under sections 552.104, 552.105, 552.106, 552.107, 552.110, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.
Section 552.104 states that information is excepted from required public disclosure if release of the information would give advantage to a competitor or bidder. The purpose of this exception is to protect the interests of a governmental body usually in competitive bidding situations. See Open Records Decision No. 592 (1991). This exception protects information from public disclosure if the governmental body demonstrates potential harm to its interests in a particular competitive situation. See Open Records Decision No. 463 (1987). Generally, section 552.104 does not except bids from public disclosure after bidding is completed and the contract has been awarded. See Open Records Decision 541 (1990).
You inform us that Eagle Pass Water is currently involved in negotiations with Texas-Eco for the building of a pipeline and water production facility to provide water to Eagle Pass Water. You further inform us that in May 2000, another entity contacted Eagle Pass Water and expressed an interest in entering into a transaction similar to the one proposed by Texas-Eco. You argue that the release of the requested information could provide an advantage to the second proposing entity in preparing its proposal and harm Eagle Pass Water's ability to receive the best offer. We agree. Therefore, we conclude that Eagle Pass Water may withhold the requested information from the requestor at this time under section 552.104 of the Government Code. As we resolve your request under section 552.104, we need not address your arguments under sections 552.105, 552.106, 552.107, 552.110, and 552.111.
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 Hadassah Schloss at 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.
Michael A. Pearle
Ref: ID# 141811
Encl. Submitted documents
cc: Mr. Richard Lowerre
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US