|Office of the Attorney General - State of Texas
June 1, 2000
Mr. Marcos Ronquillo
Dear Mr. Ronquillo:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136886.
The North Central Texas Regional Certification Agency (the "agency") received a written request for the agency's complete file on Anton's Airfoods, Inc., including that company's "status as a disadvantaged business enterprise." You state that the agency has released some responsive information to the requestor. However, you seek to withhold other information, including portions of a letter from the agency to Anton's Airfoods, pursuant to section 552.128 of the Government Code.
We note at the outset that you did not request a decision from this office in a timely manner. Section 552.301(a) of the Government Code requires a governmental body to release requested information or to request a decision from the attorney general within ten business days of receiving a request for information the governmental body wishes to withhold. When a governmental body fails to request a decision within ten business days of receiving a request for information, the information at issue is presumed public. Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The governmental body must show a compelling interest to withhold the information to overcome this presumption. See Hancock, 797 S.W.2d at 381.
The fact that information is made confidential by law or that the interests of a third party are at issue constitutes a compelling demonstration that the information should be withheld from the public. See Open Records Decision No. 150 (1977). We believe that section 552.128 of the Government Code protects the interests of historically underutilized and disadvantaged businesses. Section 552.128 provides:
(a) Information submitted by a potential vendor or contractor to a governmental body in connection with an application for certification as a historically underutilized or disadvantaged business under a local, state, or federal certification program is excepted from [required public disclosure], except as provided by this section.
(b) Notwithstanding Section 552.007 and except as provided by Subsection (c), the information may be disclosed only:
(1) to a state or local governmental entity in this state, and the state or local governmental entity may use the information only:
(A) for purposes related to verifying an applicant's status as a historically underutilized or disadvantaged business; or
(B) for the purpose of conducting a study of a public purchasing program established under state law for historically underutilized or disadvantaged businesses; or
(2) with the express written permission of the applicant or the applicant's agent.
(c) Information submitted by a vendor or contractor or a potential vendor or contractor to a governmental body in connection with a specific proposed contractual relationship, a specific contract, or an application to be placed on a bidders list, including information that may also have been submitted in connection with an application for certification as a historically underutilized or disadvantaged business, is subject to required disclosure, excepted from required disclosure, or confidential in accordance with other law.
You explain that the agency has the responsibility for certifying businesses as minority and women business enterprises. You indicate that the information you have highlighted was submitted to the agency as part of the certification process. It appears that none of the information at issue comes within the scope of section 552.128(b) or 552.128(c). Therefore, we conclude that the responsive information submitted by Anton's Airfoods, Inc. to the agency that you have highlighted are excepted from public disclosure under section 552.128 and must not be released.(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 Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ).
If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. 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.
Michael J. Burns
Ref: ID# 136886
Encl. Submitted documents
cc: Mr. Jason J. Vicente
1. Because we resolve your request under section 552.128, we need not address your other arguments for non-disclosure.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US