|
May 31, 2005
Ms. Sharon
Alexander
Associate General Counsel
Texas Department of Transportation
125 E. 11th Street
Austin, Texas 78701-2483
OR2005-04699
Dear Ms.
Alexander:
You ask whether certain information
is subject to required public disclosure under the Public
Information Act (the "Act"), chapter 552 of the Government Code.
Your request was assigned ID# 225148.
The Texas Department of
Transportation ("TXDOT") received two requests for information.
The first seeks "all documents and exhibits composing the
'Conceptual Development Plan' and 'Conceptual Financial Plan'" for
the Comprehensive Development Agreement ("CDA") entered into
between TXDOT and Cintra Zachry, LP ("Cintra"). The other
requestor asks for the entire CDA, including "all
exhibits/attachments to the Agreement." You inform us that you
have released some of the requested information, but claim that
the submitted information is excepted from disclosure under
sections 552.101 and 552.104 of the Government Code. You further
assert that the requested information may be excepted from
disclosure under section 552.110 of the Government Code, although
you take no position regarding this exception. Instead, you have
notified Cintra of the request and of its opportunity to submit
comments to this office. 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 section 552.305 permits governmental body to rely
on interested third party to raise and explain applicability of
exception to disclosure in certain circumstances). In
correspondence with this office, Cintra contends that the
information is excepted from disclosure under sections 552.101 and
552.110 of the Government Code. We have considered the claimed
exceptions and reviewed the submitted information.
We begin with section 552.104, as
it is potentially the broadest exception to disclosure. Section
552.104 of the Government Code excepts from disclosure
"information that, if released, would give advantage to a
competitor or bidder." The purpose of this exception is to protect
a governmental body's interests in connection with competitive
bidding and in certain other competitive situations. See
Open Records Decision No. 593 (1991). This exception protects
information from public disclosure if the governmental body
demonstrates potential harm to its interests in a particular
competitive situation. See Open Records Decision No. 463
(1987). Generally, section 552.104 does not except bids from
public disclosure after bidding is completed and a contract has
been entered into. See, e.g., Open Records Decision Nos.
541 (1990), 514 (1988), 306 (1982), 184 (1978), 75 (1975).
In this instance, you inform us
that the contract at issue has already been entered into. You do
not otherwise explain how release of the requested information
would interfere with any particular, on-going competitive
situation. 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.
Section 552.101 of the Government
Code excepts from public disclosure "information considered to be
confidential by law, either constitutional, statutory, or by
judicial decision" and encompasses information made confidential
by other statutes. Gov't Code § 552.101. TXDOT and Cintra both
assert that the submitted information is confidential under
section 361.3023(a) of the Transportation Code, which provides:
(a) To encourage private entities
to submit proposals under Section 361.3022, the following
information is confidential, is not subject to disclosure,
inspection, or copying under Chapter 552, Government Code, and is
not subject to disclosure, discovery, subpoena, or other means of
legal compulsion for its release until a final contract for a
proposed project is entered into:
(1) all or part of a proposal that
is submitted by a private entity for a comprehensive development
agreement, except information provided under Section
361.3022(b)(1) and (2);
(2) supplemental information or
material submitted by a private entity in connection with a
proposal for a comprehensive development agreement; and
(3) information created or
collected by the department or its agent during consideration of a
proposal for a comprehensive development agreement.
Transp. Code § 361.3023(a).
Cintra asserts that the phrase
"until a final contract for a proposed project is entered into"
only modifies the phrase "not subject to disclosure, discovery,
subpoena, or other means of legal compulsion for its release" and
does not apply to the phrase "not subject to disclosure,
inspection, or copying under Chapter 552, Government Code." Under
Cintra's interpretation, even if TXDOT has entered into a final
contract, TXDOT is prohibited from releasing information in
response to a request under chapter 552 but may release such
information if it is sought through "discovery, subpoena, or other
means of legal compulsion."
We disagree with the limitation
that Cintra's interpretation requires. The primary goal in
statutory interpretation is ascertaining and effectuating the
Legislature's intent. In re Canales, 52 S.W.3d 698, 702
(Tex. 2001). In discerning the Legislature's intent, we begin with
a statute's plain language because we assume that the Legislature
tried to say what it meant and, thus, that its words are the
surest guide to its intent. Fitzgerald v. Advanced Spine
Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999).
[E]ven when a statute is not
ambiguous on its face, a court may consider numerous factors to
determine the Legislature 's intent, including: the object sought
to be obtained; the circumstances of the statute's enactment; the
legislative history; the common law or former statutory
provisions, including laws on the same or similar subjects; the
consequences of a particular construction; the administrative
construction of the statute; and the title, preamble, and
emergency provisions.
City of Fort Worth v. Cornyn,
86 S.W.3d 320, 324 (Tex. App.--Austin 2002, no pet.) (citing Gov't
Code§ 311.023; Ken Petroleum Corp. v. Questor Drilling Corp.,
24 S.W.3d 344, 350 (Tex.2000)).
In this instance, the analysis that
accompanied the version of the bill that added the language found
in section 361.3023 states that this provision is intended to make
information confidential "until the entering into of a final
contract." See House Comm. on Transportation, Bill
Analysis, H.B. 3588, 78th Leg. (2003). The bill analysis gives no
indication that the legislature intended confidentiality under
section 361.3023 to depend on the manner in which the information
was requested. 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.
We turn now to Cintra's argument
that the contract at issue here is not final because the
conceptual development plan and conceptual financial plan are only
preliminary and will be replaced once final plans have been
adopted. Parties may leave provisions for later negotiation, yet
still create a contract. Foreca, S.A. v. GRD Development Co.,
Inc., 758 S.W.2d 744, 746 (Tex. 1988); see also Scott v.
Ingle Bros. Pacific, Inc., 489 S.W.2d 554, 555 (Tex. 1972)
(parties may fully agree upon the terms of a contract, knowing
that there are other matters on which they have not agreed and on
which they expect further negotiation, yet still create an
enforceable contract). In this instance, TXDOT and Cintra have
entered into a comprehensive development agreement but have
provided for flexibility with regard to certain details.(1)
Because the parties have entered into a final contract for
purposes of section 361.3023, the confidentiality provisions of
section 361.3023 cease to apply. Therefore, none of the submitted
information may be withheld under section 552.101 of the
Government Code on the basis of section 361.3023 of the
Transportation Code.
We next address whether the
submitted information is excepted from disclosure under section
552.110. This section 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.
The Texas Supreme Court has adopted
the definition of trade secret from section 757 of the Restatement
of Torts. Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex.),
cert. denied, 358 U.S. 898 (1958); see also Open
Records Decision No. 552 at 2 (1990). Section 757 provides that a
trade secret is any formula, pattern, device or compilation of
information which is used in one's business, and which gives him
an opportunity to obtain an advantage over competitors who do not
know or use it. It may be a formula for a chemical compound, a
process of manufacturing, treating or preserving materials, a
pattern for a machine or other device, or a list of customers. It
differs from other secret information in a business . . . in that
it is not simply information as to single or ephemeral events in
the conduct of the business . . . . A trade secret is a process or
device for continuous use in the operation of the business. . . .
[It may] relate to the sale of goods or to other operations in the
business, such as a code for determining discounts, rebates or
other concessions in a price list or catalogue, or a list of
specialized customers, or a method of bookkeeping or other office
management.
Restatement of Torts § 757 cmt. b
(1939). In determining whether particular information constitutes
a trade secret, this office considers the Restatement's definition
of trade secret as well as the Restatement's list of six trade
secret factors. Restatement of Torts § 757 cmt. b (1939).(2)
This office has held that if a governmental body takes no position
with regard to the application of the trade secret branch of
section 552.110 to requested information, we must accept a private
person's claim for exception as valid under that branch if that
person establishes a prima facie case for exception and no
argument is submitted that rebuts the claim as a matter of law.
Open Records Decision No. 552 at 5-6 (1990). However, we cannot
conclude that section 552.110(a) applies unless it has been shown
that the information meets the definition of a trade secret and
the necessary factors have been demonstrated to establish a trade
secret claim. See Open Records Decision No. 402 (1983).
Section 552.110(b) of the
Government Code excepts from disclosure "[c]ommercial 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[.]" Gov't
Code § 552.110(b). Section 552.110(b) requires a specific factual
or evidentiary showing, not conclusory or generalized allegations,
that substantial competitive injury would likely result from
release of the information at issue. See Open Records
Decision No. 661 at 5-6 (1999) (stating that 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).
Having considered Cintra's
arguments and reviewed the information at issue, we conclude that
Cintra has failed to make a prima 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. See Open
Records Decision Nos. 661 (1999) (for information to be withheld
under commercial or financial information prong of section
552.110, business must show by specific factual evidence that
substantial competitive injury would result from release of
particular information at issue), 509 at 5 (1988) (because costs,
bid specifications, and circumstances would change for future
contracts, assertion that release of bid proposal might give
competitor unfair advantage on future contracts is too
speculative). Accordingly, no portion of the submitted information
may be withheld pursuant to section 552.110. Because the claimed
exceptions do not apply and the information is not otherwise
confidential by law, the submitted information must be released to
the requestor.
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, 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 pursuant to section 552.324 of the Government Code. If
the governmental body fails to do one of these things, 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,
José Vela III
Drafting Attorney
Open Records Division
JV/krl
Ref: ID# 225148
Enc. Submitted documents
c: Katherine
Dunn Parsons
Bracewell & Giuliani LLP
711 Louisiana Street, Suite 2300
Houston, Texas 77002-2770
(w/o enclosures)
Patrick J.
Wielinski
Cokinos, Bosien & Young
Brookhollow Two
2221 East Lamar, Suite 120
Arlington, Texas 76006
(w/o enclosures)
Radford Sallee
Houston Chronicle City Desk
801 Texas Avenue
Houston, Texas 77002
(w/o enclosures)
Footnotes
1.
The CDA is available at http://www.dot.state.tx.us/txdotnews/ttc-35/TTC-35cda_signed_version.pdf.
2.
The six factors that the
Restatement gives as indicia of whether information constitutes a
trade secret are:
(1) the extent to which the
information is known outside of [the company]; (2) the extent to
which it is known by employees and others involved in [the
company's] business; (3) the extent of measures taken by [the
company] to guard the secrecy of the information; (4) the value of
the information to [the company] and [its] competitors; (5) the
amount of effort or money expended by [the company] in developing
the information; (6) the ease or difficulty with which the
information could be properly acquired or duplicated by others.
Restatement of Torts § 757 cmt. b
(1939); see also Open Records Decision Nos. 319 at 2
(1982), 306 at 2 (1982), 255 at 2 (1980).
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512)
463-2100 WEB:WWW.OAG.STATE.TX.US
An Equal Employment
Opportunity Employer
|
