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ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
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December 21, 2004

Mr. J. Kevin Patteson
Assistant General Counsel
Office of the Governor
P. O. Box 12428
Austin, Texas 78711

OR2004-10777

Dear Mr. Patteson:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 215316.

The Office of the Governor (the "governor") received a request for "[a]pplication for Texas Enterprise Fund grant submitted by Home Depot, Texas Health Science Center at Houston, Maxim Integrated Products, Citgo Petroleum [("Citgo")], Cabela's, Koyo Steering and Essex Communication." You claim that the requested information is excepted from disclosure pursuant to sections 552.104, 552.110, 552.111, and 552.131 of the Government Code. You state that, pursuant to section 552.305 of the Government Code, you notified interested third parties of the governor's receipt of this request and of their right to submit arguments to us as to whether any portion of the requested information should be withheld from disclosure. See Gov't Code 552.305(d); see also Open Records Decision No. 542 (1990) (determining that statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under Public Information Act ("Act") in certain circumstances). We have received correspondence from an attorney for Citgo. We have considered all of the submitted arguments and reviewed the submitted information.

Section 552.104 of the Government Code excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't 552.104. We note that the protections of section 552.104 serve two purposes. One purpose is to protect the interests of a governmental body by preventing one competitor or bidder from gaining an unfair advantage over others in the context of a pending competitive bidding process. See Open Records Decision No. 541 (1990). The other purpose is to protect the legitimate marketplace interests of a governmental body when acting as a competitor in the marketplace. See Open Records Decision No. 593 (1991). In both instances, the governmental body must demonstrate actual or potential harm to its interests in a particular competitive situation. See Open Records Decision Nos. 593 at 2 (1991), 463 (1987), 453 at3 (1986). A general allegation of a remote possibility of harm is not sufficient to invoke section 552.104. See Open Records Decision No. 593 at 2.

Based on your arguments and our review of the submitted information, we find that the governor has sufficiently demonstrated the applicability of section 552.104 to the submitted information in this instance. Accordingly, we conclude the governor may withhold the submitted information pursuant to section 552.104 of the Government Code.(1)

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 Dep't of Pub. 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,

Ronald J. Bounds
Assistant Attorney General
Open Records Division
RJB/krl
Ref: ID# 215316
Enc. Submitted documents

c: Mr. Dave Michaels
Staff Writer
The Dallas Morning News
1005 Congress Avenue, Suite 930
Austin, Texas 78701
(w/o enclosures)

Mr. Paul Seals
Akin Gump Strauss Hauer & Feld LLP
300 West 6th Street, Suite 2100
Austin, Texas 78701-2916
(w/o enclosures)


 

Footnotes

1. Because our ruling is dispositive, we need not address any of the remaining submitted arguments.
 

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