2005.06.09
Saying Texas DOT have
not explained "how release of the requested
information would interfere with any particular,
on-going competitive situation" the state Attorney
General Office have said they believe details of the
Cintra-Zachary contract for development of Texas
Transportation Corridor 35 (TTC35) are being
illegally withheld.
"Because TXDOT does not
demonstrate how releasing the information at issue
will cause it harm in this instance, we find that
none of the information at issue may be withheld
pursuant to section 552.104." The statements are
from a May 31, 2700-word, letter to TXDOT legal
counsel from the Open Records Division of the office
of the Texas state Attorney General (OAG).
Most of the OAG letter
consists of a close argument to establish that the
plain meaning of the Texas Public Information Act
and the legislature's intent are simply that all
details of a contract with the state must become
public information on its finalization - with the
exception of any trade secrets.
Cintra and TXDOT
lawyers argued that there was an exception.
OAG letter: "Given the
language of the statute and the legislature's stated
intent with regards to this language, we conclude
that the confidentiality afforded by section
361.3023 ceases once a final contract is entered
into, regardless of the form that a request for such
information may take."
Cintra also argued to
the OAG that confidentiality is warranted by the
fact that the project development contract (termed a
Comprehensive Development Agreement or CDA in Texas)
provides for flexibility in details and that the
so-far-secret conceptual financial plan is only
preliminary, subject to revision, and thereby
precluded from disclosure requirements. The OAG says
that only trade secrets and probable substantial
competitive harm are grounds for secrecy, and that
Cintra and TXDOT have not demonstrated that the
financial details of their contract involve either.
"Having considered
Cintra's arguments and reviewed the information at
issue, we conclude that Cintra has failed to make a
prime facie case that its information constitutes
trade secrets. Further, we find that
Cintra has made
only conclusory allegations that release of the
requested information would cause the company
substantial competitive injury and has provided no
specific factual or evidentiary showing to support
these allegations... Accordingly, no portion of the
submitted information may be withheld pursuant to
section 552.110. "
The OAG continues:
"Based on the statute, the attorney general expects
that, upon receiving this ruling, the governmental
body will either release the public records promptly
pursuant to section 552.221(a) of the Government
Code or file a lawsuit challenging this ruling..."
It defines promptly as within 10 days - by June 10.
Houston Chronicle made
the complaint
The OAG ruling was in
response to a complaint filed by Rad Sallee,
transportation reporter at the Houston Chronicle
newspaper.
COMMENT: the true &
timeworn reporter's thought is "If there is no
wrongdoing to hide, why are you trying to hide
stuff?" But we doubt there's a juicy story here. So
far the CDA for TTC35 has proven a whole heap of
hyperbole. Contrary to the state celebrants and the
critics alike, there's only an agreement to try
develop a financeable project. There are no binding
commitments beyond spending the paltry sum of $2m or
so in project development costs. There is no project
yet, and no toll concession. The whole secrecy thing
looks more like a silly lawyers' try-on than a
coverup. But you never know...
see
www.oag.state.tx.us/opinions/orl50abbott/orl2005/or0504699.html
TOLLROADSnews 2005-06-09
