|Office of the Attorney General - State of Texas
November 9, 2000
Mr. Leonard W. Peck, Jr.
Dear Mr. Peck:
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# 141126.
The Texas Department of Criminal Justice (the "department") received a request for proposals to provide monitoring services to the Parole Division of the department. You suggest that the property and privacy rights of third parties may be implicated by the release of the requested information. You state that you have notified Security Link from Ameritech ("Ameritech") and General Security Services Corporation ("GSSC"), the companies whose information is responsive to the request. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Act in certain circumstances). Section 552.305(d) of the Act requires a governmental body to make a good faith effort to notify a party whose proprietary interest may be implicated by the release of the requested information. The third party notice must be sent within ten days of the governmental body's receipt of the request and must include a copy of the written request for information and a statement in the form prescribed by the attorney general. The third party may submit to the attorney general, within ten days of receiving the notice, its reasons why the information in question should be withheld.
Ameritech did not provide comment. Therefore it has provided no basis to conclude that its information is excepted from disclosure. See Open Records Decision Nos. 639 at 4 (1996) (to prevent disclosure of commercial or financial information, party must show by specific factual or evidentiary material, not conclusory or generalized allegations, that it actually faces competition and that substantial competitive injury would likely result from disclosure), 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990).
GSSC provided comment, asserting that its proposal is excepted from disclosure by section 552.110 of the Government Code. GSSC also raises section 552.104 of the Government Code; however as this section does not protect the interests of third parties it shall not be addressed. See Open Records Decision No. 592 (1991).
Section 552.110 protects the property interests of private persons by excepting from disclosure two types of information: (1) trade secrets obtained from a person and privileged or confidential by statute or judicial decision 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. The governmental body, or interested third party, raising these exceptions must provide a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from disclosure. Gov't Code § 552.110(b); see also National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974).
The Texas Supreme Court has adopted the definition of trade secret from section 757 of the Restatement of Torts. Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex.), cert. denied, 358 U.S. 898 (1958); see also Open Records Decision No. 552 at 2 (1990). Section 757 provides that a trade secret is
any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. It differs from other secret information in a business . . . in that it is not simply information as to single or ephemeral events in the conduct of the business . . . . A trade secret is a process or device for continuous use in the operation of the business. . . . [It may] relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management.
Restatement of Torts § 757 cmt. b (1939). In determining whether particular information constitutes a trade secret, this office considers the Restatement's definition of trade secret as well as the Restatement's list of six trade secret factors. Restatement of Torts § 757 cmt. b (1939).(1) This office has held that if a governmental body takes no position with regard to the application of the trade secret branch of section 552.110 to requested information, we must accept a private person's claim for exception as valid under that branch if that person establishes a prima facie case for exception and no argument is submitted that rebuts the claim as a matter of law. Open Records Decision No. 552 at 5-6 (1990).
As the listed factors indicate, the gravamen of a "trade secret" argument is the degree to which the information is kept secret. Here, GSSC relies on conclusory statements and does not provide any factual allegations regarding any measures which it takes to insure the security of the subject information. We therefore conclude that it has not been demonstrated that the responsive information may be excepted from disclosure as a trade secret under section 552.110(a). Similarly, we find that as GSSC's comments consist of conclusory statements, rather than factual allegations, they fail to demonstrate based on specific factual evidence that disclosure of the information would cause substantial competitive harm. Therefore, GSSC's proposal may not be withheld under section 552.110(b) of the Government Code.
The department asserts that section 552.108 of the Government Code protects the Section II Technical Offer, the Inventory Tracking Manual, the Disaster Recovery Manual, and the Equipment Demonstration and Testing Folder portions of the Ameritech materials, as well as GSSC's Section II Technical Offer, and specified materials included with the three ring binder that contains GSSC's proposal. In pertinent part, section 552.108 provides:
An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from the requirements of Section 552.021 if:
(1) release of the internal record or notation would interfere with law enforcement or prosecution;
This section excepts from disclosure the internal records and notations of law enforcement agencies and prosecutors when their release would interfere with law enforcement and crime prevention. Open Records Decision No. 531 at 2 (1989) (quoting Ex parte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977)). When section 552.108(b) is claimed, the agency claiming it must reasonably explain, if the information does not supply the explanation on its face, how releasing the information would interfere with law enforcement. Open Records Decision No. 434 at 3 (1986). Whether disclosure of particular records will interfere with law enforcement must be decided on a case-by-case basis. Attorney General Opinion MW-381 (1981). The department claims that the information which it seeks to withhold includes technical and operational details of systems used to monitor the location of certain persons on parole or under mandatory supervision. The department relates that these individuals' movements are closely constrained and controlled because they present a risk of serious breaches of public safety. The department further relates that release of the information could compromise the effectiveness of the monitoring system since the information can be used to develop methods to create the appearance of compliance.
Based on the representations of the department, and our review of the submitted materials, we conclude that section 552.108 has been shown to except Ameritech's Section II Technical Offer, Inventory Tracking Manual, Disaster Recovery Manual, and Equipment Demonstration and Testing Folder, as well as GSSC's Section II Technical Offer. However, only a portion of the "loose" materials included with the submitted three ring binder that contains GSSC's proposal are found to be excepted. We have marked these materials to indicate the portions which must be released and those which may be withheld under section 552.108 of the Government Code.
Other than that portion of the submitted materials which have been found to be excepted from disclosure under section 552.108, the responsive 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.
Michael Jay Burns
Ref: ID# 141126
Encl: Submitted documents
cc: Mr. Jeff D. Martin
Mr. Steve Ayers
Mr. Ray Vintilla
1. The six factors that the Restatement gives as indicia of whether information constitutes a trade secret are:
(1) the extent to which the information is known outside of [the company]; (2) the extent to which it is known by employees and others involved in [the company's] business; (3) the extent of measures taken by [the company] to guard the secrecy of the information; (4) the value of the information to [the company] and [its] competitors; (5) the amount of effort or money expended by [the company] in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
Restatement of Torts § 757 cmt. b (1939); see also Open Records Decision Nos. 319 at 2 (1982), 306 at 2 (1982), 255 at 2 (1980).