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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 6, 2002

Mr. Mark B. Taylor
City Attorney
City of San Marcos
630 East Hopkins
San Marcos, Texas 78666

OR2002-6950

Dear Mr. Taylor:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173256.

The City of San Marcos (the "city") received a request for "proposals from four finalists in the 'Website Redesign' project for the City of San Marcos." You indicate that the city has provided the requestor with three of the four requested proposals. You claim, however, that the proposal submitted to the city by AIVIA, Inc. ("AIVIA") may be excepted from disclosure under sections 552.104 and 552.110 of the Government Code. You indicate that the city has notified AIVIA of the request for information in order to afford it an opportunity to submit objections to release of the submitted information. 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 exception in Public Information Act in certain circumstances). We have considered the exceptions you claim and reviewed the submitted information.

You argue that the submitted information may be excepted from disclosure because AIVIA's proposal contains a statement indicating that its proposal consists of "information that is confidential and proprietary to AIVIA" and that its proposal is submitted "with the express understanding that it will be held in strict confidence and will not be disclosed, duplicated or used in whole or in part, for any purpose other than evaluation of this proposal." However, information that is subject to disclosure under the Public Information Act may not be withheld simply because the party submitting it anticipates or requests confidentiality. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 676-78 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Further, it is well-settled that a governmental body's promise to keep information confidential is not a basis for withholding that information from the public, unless the governmental body has specific authority to keep the information confidential. See Open Records Decision Nos. 514 at 1 (1988), 476 at 1-2 (1987, 444 at 6 (1986 ). Consequently, the submitted information must fall within an exception to disclosure in order to be withheld.

Section 552.104 of the Government Code provides that information is excepted from required public disclosure if release of the information would give advantage to a competitor or bidder. The purpose of section 552.104 is to protect a governmental body's interests in competitive bidding situations. See Open Records Decision No. 592 (1991). Moreover, section 552.104 requires a showing of some actual or specific harm in a particular competitive situation; a general allegation that a competitor will gain an unfair advantage will not suffice. Open Records Decision No. 541 at 4 (1990). This office has long held that section 552.104 does not except information relating to competitive bidding situations once a contract is in effect. See, e.g., Open Records Decision Nos. 541 (1990), 514 (1988), 306 (1982), 184 (1978), 75 (1975). You state that the requested proposals have been opened by the city. You do not indicate whether the city has executed and entered into a contract with respect to the "Website Redesign" project. Therefore, you have not demonstrated that the submitted information is excepted under section 552.104. See Open Records Decision No. 592 (1991) (governmental body may waive section 552.104).

An interested third party is allowed ten business days after the date of its receipt of the governmental body's notice under section 552.305(d) to submit its reasons, if any, as to why information relating to that party should be withheld from public disclosure. See Gov't Code 552.305(d)(2)(B). As of the date of this letter, AIVIA has not submitted to this office its reasons explaining why its information should not be released. Therefore, AIVIA has provided us with no basis to conclude that it has a protected proprietary interest in any of the submitted 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).

We note, however, that the submitted proposal contains e-mail addresses obtained from the public. Section 552.137 makes certain e-mail addresses confidential. Section 552.137 provides:

(a) An e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under this chapter.

(b) Confidential information described by this section that relates to a member of the public may be disclosed if the member of the public affirmatively consents to its release.

Gov't Code 552.137. You do not inform us that a member of the public has affirmatively consented to the release of any e-mail address contained in the submitted materials. The city must, therefore, withhold e-mail addresses of members of the public under section 552.137. We have marked the types of e-mail addresses that must be withheld under section 552.137. We note that section 552.137 does not apply to a business' general e-mail address or web address.

To summarize: (1) we have marked the types of e-mail addresses that must be withheld under section 552.137 of the Government Code; and (2) the remaining information must be released.

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 Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code 552.325. 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,

Karen A. Eckerle
Assistant Attorney General
Open Records Division
KAE/sdk
Ref: ID# 173256
Enc: Submitted documents

c: Mr. Tim Schmidt
Vision Internet
2530 Wilshire Boulevard, 2nd Floor
Santa Monica, California 90403
(w/o enclosures)

Mr. Jeff Hattendorf
AIVIA, Inc.
c/o Mark B. Taylor
City of San Marcos
630 East Hopkins
San Marcos, Texas 78666
(w/o enclosures)


 

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