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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 12, 2002

Ms. Amy L. Sims
Assistant City Attorney
City of Lubbock
P.O. Box 2000
Lubbock, Texas 79457

OR2002-7090

Dear Ms. Sims:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173599.

The City of Lubbock (the "city") received a request for "copies of 3 articles that Dan Dennison says are on his desk (per phone conversation on 9/26/02) re: claim that 'animal burrows' can lead to conditions that prevent contaminants from being removed by vegetation (also in AJ article 9/20/02) [and] 'cost-benefit analysis involving use of a commercial relocator' as stated in City's response to NOV from TNRCC on 6/3/02, dated 8/20/02." We note that you have not submitted copies of the requested articles for our review. We therefore assume that you have released this information to the extent that it exists. If you have not released it, you must do so at this time. See Gov't Code 552.301(a), .302. You claim that the submitted 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 information.(1)

Section 552.104 excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't Code 552.104(a). 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). Section 552.104 does not except information relating to competitive bidding situations once a contract is in effect. Open Records Decision Nos. 306 (1982), 184 (1978).

In this case, you inform us that the requested cost-benefit analysis relates to a request for proposals in which a contract has not yet been awarded. Based on your arguments and our review of the submitted information, we conclude that the cost-benefit analysis is excepted from disclosure based on section 552.104 until such time as the contract is in effect. Because our decision under section 552.104 is dispositive, we do not address your other arguments.

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,

Denis C. McElroy
Assistant Attorney General
Open Records Division
DCM/lmt
Ref: ID# 173599
Enc. Submitted documents

c: Ms. Julia Penelope
1916 37th Street
Lubbock, Texas 79412
(w/o enclosures)


 

Footnotes

1. Although your letter states that the city received this request on June 14, 2002, we note that the request itself is dated September 26, 2002. We have used the date on the request in calculating deadlines.
 

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