|Office of the Attorney General - State of Texas
September 25, 2000
Mr. Dennis P. Duffy
Dear Mr. Duffy:
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# 139336.
The University of Houston (the "university") received a request for information pertaining to Aquaria Beverage Company, LLC ("Aquaria"). You indicate that the requested information relates to a client of the university's Small Business Development Center. You claim that the information is excepted from disclosure under section 552.101 of the Government Code. You also believe that the information may be excepted from disclosure under section 552.110 of the Government Code. Accordingly, you notified the affected third party, Aquaria, of the information request. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released). We have considered the exceptions you raise and have reviewed the information you submitted.
You concede that the university did not request this ruling within ten business days of its receipt of the information request, as required by section 552.301(b) of the Government Code. In the event that a governmental body fails to comply with section 552.301 in seeking an attorney general decision under the Act, the requested information is presumed to be subject to required disclosure and must be released, unless there is a compelling reason to withhold any of that information from the public. See Gov't Code § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 380-81 (Tex. App.--Austin 1990, no writ). As a general rule, a governmental body can rebut the statutory presumption of openness under section 552.302 by showing that the information at issue is deemed to be confidential under some other source of law or that the interests of third parties are at stake. See Open Records Decision No. 630 at 3 (1994). Thus, a successful claim that information is excepted from disclosure under sections 552.101 or 552.110 generally will suffice to overcome the presumption that the requested information must be released. Id.
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Thus, section 552.101 protects information that another statute deems to be confidential. You state that under a cooperation agreement with the federal Small Business Administration, the university's Small Business Development Center (the "SBDC") is required to keep all business information confidential. You direct our attention to federal regulations that you claim require the withholding of the requested information. We have considered your arguments and have carefully reviewed the regulations on which you rely. We find no language in those regulations that expressly makes information provided to the SBDC confidential or that prohibits the release of such information to the public. We therefore conclude that the requested information is not excepted from disclosure under section 552.101 of the Government Code. See Open Records Decision No. 478 at 2 (1987) (stating that statutory confidentiality requires express language making certain information confidential or stating that information shall not be released to the public).
The university also believes that the requested information must be withheld from disclosure under section 552.110 of the Government Code. Section 552.110 protects the proprietary interests of private parties by excepting from disclosure two types 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. See Gov't Code § 552.110(a), (b). You contend that the release of the requested information would cause substantial competitive injury to Aquaria. However, you submit no arguments in support of that claim. Furthermore, this office received no arguments from Aquaria as to whether the requested information should be withheld from disclosure. Therefore, the requested information has not been demonstrated to be excepted under section 552.110. See Open Records Decision Nos. 542 at 3 (1990), 552 at 2-5 (1990).
In summary, neither the university nor Aquaria has demonstrated any compelling reason to withhold the information in question from disclosure under sections 552.101 or 552.110 of the Government Code. Consequently, the requested information 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).
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 the General Services 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. 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.
James W. Morris, III
Assistant Attorney General
Open Records Division
Ref: ID# 139336
Encl. Submitted documents
cc: Ms. Julee Magness
Mr. Tom Plant