|Office of the Attorney General - State of Texas
August 25, 2000
Ms. Joan Kennerly
Dear Ms. Kennerly:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 138517.
The City of Irving (the "city") received a request for various information concerning WideOpenWest Texas, LLC, the company to which the city has granted a franchise to operate a cable television system. You state that the city has released all of the requested records with the exception of WideOpenWest's "financial statements and/or business fiscal records . . . proving the financial standing and ability of WideOpenWest to provide cable services and build out infrastructure under the Irving franchise contract." You claim that the requested information is excepted from disclosure under section 552.110(b) of the Government Code. We have considered the exception you claim, reviewed your arguments as well as those of WideOpenWest, and reviewed the submitted information.
Section 552.110(b) of the Government Code reads as follows:
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 is excepted from [required public disclosure].
The city states that the disclosure of those records would cause substantial harm to the competitive position of WideOpenWest from whom the information was provided, and nevertheless, it would harm the future business of the City of Irving and companies like WideOpenWest. The release of the material would impair the government's ability to obtain that type of information in order to be able to overview companies' charges to the citizen of Irving and have the ability to know what type of infrastructure is being placed in the Right-of-Way of the City of Irving.
The city informs us that WideOpenWest specifically requested that the information remain confidential. In addition, the city submitted to this office a copy of the city ordinance by which the city granted WideOpenWest the cable television franchise. Provision 32 of that ordinance provides that the city will maintain confidentiality of WideOpenWest's information "to the extent permitted by law."(1) WideOpenWest asks that the city keep the information confidential and expresses concern about its competitors having access to the information.
We find that neither the city nor WideOpenWest has provided specific factual evidence that disclosure would cause substantial competitive harm to WideOpenWest as required for protection from disclosure under section 552.110(b). Accordingly, we conclude that the city may not withhold the information at issue under section 552.110(b).(2)
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.
Kay H. Hastings
Ref: ID# 138517
Encl. Submitted documents
cc: Mr. Bryan Eppstein
Ms. Julia McGrath
1. A governmental body may not pass an ordinance purporting to make certain information confidential unless the governmental body is statutorily authorized to do so. See Open Records Decision No. 114 at 1 (1975).
2. Section 552.305 of the Government Code requires a governmental body to make a good faith attempt to notify in writing a person whose proprietary information may be subject to section 552.110 within ten business days of receiving the request for information. The required notification should be accomplished with a form devised by this office. A copy of the form the governmental body must send can be found in Appendix C of the 2000 Public Information Handbook.