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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 19, 2002

Ms. Hadassah Schloss
Open Records Administrator
Texas Building and Procurement Commission
P.O. Box 13047
Austin, Texas 78711

OR2002-7289

Dear Ms. Schloss:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 174065.

The Texas Building and Procurement Commission (the "commission") received a request for all materials submitted by Harkins Company ("Harkins") and Peak Pure Air Mechanical Contracting, Inc., ("Peak") in response to a specific project. You claim that the requested information is excepted from disclosure under section 552.104 of the Government Code. Additionally, you state that this information may implicate the proprietary interests of Harkins and Peak, interested third parties, under section 552.110 of the Government Code. You have notified Harkins and Peak of the request for information pursuant to section 552.305 of the Government Code. 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 (the "Act") in certain circumstances). The commission has submitted the information at issue to this office. We also received correspondence from Peak. We have considered these arguments and have reviewed the submitted information.

Initially, we note that you failed to submit to this office a copy of the specific information requested or representative samples of the information within the fifteen business day time period as prescribed by section 552.301 of the Government Code. See Gov't Code 552.301. 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). Section 552.104 of the Government Code is a discretionary exception under the Act and, therefore, does not overcome the presumption that the submitted information is public information. See Open Records Decision No. 592 (1991) (governmental body may waive section 552.104). Therefore, you may not withhold the requested information under section 552.104 of the Government Code. Normally, a compelling reason for non-disclosure exists where some other source of law makes the information confidential or where third party interests are at stake. Open Records Decision No. 150 at 2 (1977). As Peak has raised section 552.110 of the Government Code in regard to its information, we will address their argument accordingly.

In regard to the submitted information concerning Harkins, 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 decision, Harkins has not submitted to this office any reasons explaining why its information should not be released. Because Harkins did not submit arguments in response to the section 552.305 notice, we have no basis to conclude that this company's information is excepted from disclosure. See Open Records Decision Nos. 639 at 4 (1996) (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), 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990). The submitted information relating to Harkins must therefore be released to the requestor.

In regard to its proposal, Peak raises section 552.110 of the Government Code. Section 552.110 of the Government Code 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. Peak does not argue that any of the information held by the commission constitutes a trade secret. The commercial or financial branch of section 552.110 requires the interested third party raising this exception to provide a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from disclosure. Gov't Code 552.110(b); Open Records Decision No. 661 (1999) (business enterprise must show by specific factual evidence that release of information would cause it substantial competitive harm); see also National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974).

After reviewing the correspondence submitted by Peak, we conclude that Peak has not made the specific factual or evidentiary showing required under section 552.110(b) that the release of its information would likely result in substantial competitive harm to Peak. Thus, Peak has failed to demonstrate that any of its information is excepted under section 552.110 of the Government Code and it 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,

W. Montgomery Meitler
Assistant Attorney General
Open Records Division
WMM/lmt
Ref: ID# 174065
Enc: Submitted documents

c: Mr. Nelson R. Kerr III
Law Offices of Forest D. Cook
P.O. Box 1482
Austin, Texas 78767-1482
(w/o enclosures)

Mr. Rick Harkins
Harkins Company
618 Hwy 95 N
Elgin, Texas 78621
(w/o enclosures)

Mr. Edward L. Peacock
Peak Pure Air Mechanical Contracting, Inc.
P.O. Box 5098
Jonestown, Texas 78645
(w/o enclosures)

Mr. Roy O. Smithers
Law Offices of Roy O. Smithers, P.C.
3900 Manchaca
Austin, Texas 78704
(w/o enclosures)


 

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