|Office of the Attorney General - State of Texas
December 27, 2000
Mr. Howard D. Bye
Dear Mr. Bye:
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# 142718.
The City Public Service Board of the City of San Antonio ("CPS"), which you represent, received a request for fifteen categories of information. You indicate that CPS does not have information responsive to two categories of information. We note that the Public Information Act does not require a governmental body to disclose information that did not exist at the time the request was received. Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986). You further indicate that CPS has released information responsive to twelve other categories of requested material. However, with respect to the request for a list of CPS customers in Fair Oaks Ranch, you claim the information is excepted from disclosure under section 552.131 of the Government Code. We have considered the exception you claim.
Section 552.131, as added by Senate Bill 7,(1) excepts from disclosure a public power utility's information related to a competitive matter. The exception defines "competitive matter" as a matter the public power utility governing body in good faith determines by vote to be related to the public power utility's competitive activity. The governing body must also, in like manner, determine that the release of the information would give an advantage to competitors or prospective competitors. Section 552.131(a)(3) lists thirteen categories of information that may not be deemed competitive matters. The attorney general may conclude that section 552.131 is inapplicable to the requested information only if, based on the information provided, the attorney general determines the public power utility governing body has not acted in good faith in determining that the issue, matter, or activity is a competitive matter or that the information requested is not reasonably related to a competitive matter. Gov't Code § 552.131(c). Further, section 552.131(b) provides:
Information or records are excepted from the requirements of Section 552.021 if the information or records are reasonably related to a competitive matter, as defined in this section. Excepted information or records include the text of any resolution of the public power utility governing body determining which issues, activities, or matters constitute competitive matters. Information or records of a municipally owned utility that are reasonably related to a competitive matter are not subject to disclosure under this chapter, whether or not, under the Utilities Code, the municipally owned utility has adopted customer choice or serves in a multiply certificated service area. This section does not limit the right of a public power utility governing body to withhold from disclosure information deemed to be within the scope of any other exception provided for in this chapter, subject to the provisions of this chapter.
Gov't Code § 552.131(b) (emphasis added).
On October 20, 2000, CPS passed a resolution by vote pursuant to section 552.131 in which it determined that "[a]ll information regarding retail customers" was a competitive matter, which, if disclosed, would provide an advantage to existing or prospective competitors. The requested list of customers thus relates to a competitive matter as defined under the CPS resolution. Furthermore, the requested information is not clearly among the thirteen categories of information expressly exempted from the definition of competitive matter and we have no evidence CPS failed to act in good faith. Consequently, we agree that the requested customer list relates to a competitive matter in accordance with CPS's resolution, and therefore, is excepted from disclosure pursuant to section 552.131.
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.
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 Dep't of Pub. 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 Hadassah Schloss at the General Services Commission at 512/475-2497.
Nathan E. Bowden
Ref: ID# 142718
cc: Mr. Wayne Barth
Footnotes1. Act of May 27, 1999, 76th Leg., R.S., ch. 405, § 46 (codified at Gov't Code § 552.131).