|Office of the Attorney General - State of Texas
January 27, 2000
Mr. Thomas W. Deaton
Dear Mr. Deaton:
You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 131782.
The Deep East Texas Workforce Development Board (the "board") received a written request for certain portions of the winning proposal submitted to the board for the provision of child care management services. You contend the requested information is excepted from required public disclosure pursuant to sections 552.104 and 552.110 of the Government Code.(1)
Section 552.104 of the Government Code excepts from required public disclosure "information that, if released, would give advantage to a competitor or bidder." Section 552.104 is generally invoked to except information submitted to a governmental body as part of a bid or similar proposal; see, e.g., Open Records Decision No. 463 (1987). Governmental bodies may withhold this type of information while the governmental officials are in the process of interpreting the proposals and the competitors are free to furnish additional information. Cf. Open Records Decision No. 170 (1977). Section 552.104 does not, however, except bids or proposals from disclosure once the bidding is over and the contract is in effect. Open Records Decision Nos. 306 (1982), 184 (1978). Because you indicate that the board has awarded a contract in this instance, we conclude that section 552.104 is inapplicable here. Accordingly, the board may not withhold any of the requested information pursuant to section 552.104 of the Government Code.
Section 552.110 of the Government Code excepts from required public disclosure two categories of information: 1) trade secrets, 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. You have provided this office with no information on which to conclude that either branch of section 552.110 applies to the information at issue.
We further note that, effective September 1, 1999, section 552.305(d) of the Government Code provides:
If release of a person's proprietary information may be subject to exception under Section 552.101, 552.110, 552.113, or 552.131, the governmental body that requests an attorney general decision under Section 552.301 shall make a good faith attempt to notify that person of the request for the attorney general decision. Notice under this subsection must:
(1) be in writing and sent within a reasonable time not later than the 10th business day after the date the governmental body receives the request for the information; and
(A) a copy of the written request for the information, if any, received by the governmental body; and
(B) a statement, in the form prescribed by the attorney general, that the person is entitled to submit in writing to the attorney general within a reasonable time not later than the 10th business day after the date the person receives the notice:
(i) each reason the person has as to why the information should be withheld; and
(ii) a letter, memorandum, or brief in support of that reason.
To date, this office has received no explanation from any interested party as to why the information at issue is excepted from required public disclosure. This office therefore has no basis on which to conclude that the requested information may be withheld from the public. Accordingly, the board must release the requested information in its entirety.
We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.
Noelle C. Letteri
Ref.: ID# 131782
cc: Ms. Jill Stovall
Ms. Teresa Hamilton
1. The requestor also seeks the winning proposal's "scoring and review instrument and review team comments." Because you do not argue that this information is excepted from public disclosure, we assume the board has released this information to the requestor. If it has not, it must do so at this time. See Gov't Code § 552.302.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US