|Office of the Attorney General - State of Texas
July 11, 2000
Mr. Arturo G. Michel
Dear Mr. Michel:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136942.
The Houston Community College ("HCC"), which you represent, received a request for information related to real property where a HCC facility is located, and the owners of that property. You claim that the requested information is excepted from disclosure under sections 552.101, 552.104, 552.105, 552.107, 552.110, and 552.111 of the Government Code. You contend that the proprietary interests of a third party, The Keystone Group ("Keystone"), may be implicated by the release of some of the responsive information.(1) We have considered the exceptions you claim and reviewed the submitted information.
The Public Information Act requires a governmental body that wishes to withhold requested information to provide to the attorney general's office a copy of the written request for information, no latter than the fifteenth business day after the date that it received the written request. Gov't Code § 552.301(e)(1)(B). HCC did not submit a copy of the written request for information. Thus, HCC did not comply with the requirements of section 552.301. The requested information is therefore presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. Gov't Code § 552.302. A compelling reason is demonstrated where information is made confidential by other law, or where third party interests are at issue. Open Record Decision No. 150 (1977). As sections 552.104, 552.105, 552.107, and 552.111 protect only the interests of the governmental body, and do not implicate confidentiality concerns, none of the responsive information may be withheld under any of these exceptions.
HCC has asserted that the proprietary interests of a third party are implicated by the release of the responsive information. Therefore, we will address those exceptions which protect the interests of this third party.
As required by Government Code section 552.305, HCC, provided the third party, Keystone, with a statement that appears to be in the form prescribed by the attorney general, that this third party is entitled to submit in writing to the attorney general, not later than the 10th business day after the date it receives the notice, the reasons the party asserts as to why the information should be withheld.
Key Stone provided comment to this office, asserting that the responsive information is excepted from public disclosure by sections 552.105 and 552.110(b) of the Government Code. As section 552.105 protects only the interests of a governmental body, none of the responsive information may be withheld under this section. See Open Records Decision No. 357 (1982).
Section 552.110(b) excepts from public disclosure "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." Keystone asserts that the requestor here is a tenant of the same center in which the subject HCC facility is located. Keystone also relates that the requestor is in dispute with Keystone over leasing issues. Keystone contends that release of the responsive information to this requestor would reveal details of its negotiating points and would thereby cause substantial harm to Keystone in future transactions related to its tenants.
We disagree. The terms of any lease or purchase agreement that Keystone enters into with HCC will be public information. See Gov't Code § 552.022(a)(3) (information in a contract, voucher or account related to the expenditure of public money is public unless made confidential by law outside the Public Information Act). It must therefore be assumed that Keystone is negotiating with HCC with the knowledge that its financial dealings with this governmental body will become a matter of public record. Further, the interim negotiation positions that Keystone takes with HCC do not necessarily affect Keystones' negotiation positions with any other entity, since the parties in any other negotiations would not be similarly situated. We conclude that Keystone has not demonstrated that disclosure of the information responsive to this request would cause Keystone substantial competitive harm. Therefore, this information cannot be withheld under section 552.110(b) of the Government Code. As no exception has been shown to apply to the responsive information, it must be released.
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 Jay Burns
Ref: ID# 136942
Encl Submitted documents
cc: Mr. John Gant
1. We note that the request also implicates the interests of Mr. Robert Morris, who you identify as a co-owner of the subject property.
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