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January 14, 1999

Ms. Laurie Bouillion Larrea
President, Dallas County
Local Workforce Development Board
1201 Main Street, Suite 2700
Dallas, Texas 75202

OR99-0102

Dear Ms. Larrea:

You ask whether certain information is subject to required public disclosure under the Texas Open Records Act, chapter 552 of the Government Code. Your request was assigned ID# 121077.

The Dallas County Local Workforce Development Board (the "board") received a request for the following:

1. Most recent RFP for Management of the One Stop Center and Welfare Orientation Project.

2. Copy of the current Lockheed Martin IMS contract.

3. Copy of the current Lockheed Martin's proposal which is currently under negotiation and scheduled to begin September 1, 1998.

You state that you have provided the requestor with a copy of the RFP and the current Lockheed Martin IMS ("Lockheed Martin") contract. On behalf of Lockheed Martin, you contend that portions of the requested proposal are excepted from disclosure under the Open Records Act.(1)

Since the proprietary interests of Lockheed Martin may be implicated by the release of its proposal, we notified Lockheed Martin about the request for information. 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 Open Records Act in certain circumstances). Lockheed Martin responded by claiming that portions of its bid proposal are excepted from disclosure pursuant based on the individual right to privacy and section 552.110 of the Government Code.

Lockheed Martin's proposal includes the job qualifications and work history of several of its employees (pp. 53 and 56, and resumes in section 7). Lockheed Martin contends that this information is excepted from disclosure based on its individual employees' rights to privacy. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses the common-law right to privacy. For information to be protected from disclosure by the common-law right of privacy under section 552.101, the information must be highly intimate or embarrassing such that its release would be highly objectionable to a reasonable person, and the information must not be of legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). We do not find the professional qualifications of Lockheed Martin employees to be highly intimate and embarrassing information. See Open Records Decision No. 455 (1987) (qualifications of applicants for employment not protected by common-law right to privacy). Thus, we conclude that section 552.101 does not except page 53, page 56, or the resumes in section 7 from disclosure.

Section 552.110 of the Government Code protects the property interests of third parties by excepting from disclosure two types of information: (1) trade secrets, and (2) commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision. Lockheed Martin contends that portions of its proposal are excepted from disclosure under section 552.110 as commercial or financial information. In Open Records Decision No. 639 (1996), this office announced that it would follow the federal courts' interpretation of exemption 4 to the federal Freedom of Information Act when applying the second prong of section 552.110 for commercial and financial information. In National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974), the court concluded that for information to be excepted under exemption 4 to the Freedom of Information Act, disclosure of the requested information must be likely either to (1) impair the Government's ability to obtain necessary information in the future, or (2) cause substantial harm to the competitive position of the person from whom the information was obtained. National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Lockheed Martin argues that releasing portions of its proposal would cause it to suffer substantial competitive harm. A business enterprise cannot succeed in a National Parks claim by a mere conclusory assertion of a possibility of commercial harm. ORD 639 at 4 (1996). To prove substantial competitive harm, the party seeking to prevent disclosure 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. Id.

Having reviewed Lockheed Martin's arguments, we conclude that Lockheed Martin has not provided specific factual or evidentiary material to support its claim that publicly disclosing Attachment M or the salary ranges on the job descriptions in Section 7 would cause it to suffer substantial competitive harm. We conclude that Lockheed Martin has demonstrated that publicly disclosing the following sections of its proposal would cause it to suffer substantial competitive harm: pp. 7-20, 37-39, 43, 58-59, the marked portions of pages 63-66, 76, 79-80, Section 4, Attachment I, and Attachment K. The board must withhold these sections of the proposal from disclosure under the commercial or financial information prong of section 552.110. All remaining portions of the proposal must be released.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Yours very truly,

Karen E. Hattaway
Assistant Attorney General
Open Records Division

KEH/ch

Ref: ID# 121077

Enclosures: Submitted documents

cc: Mr. Keith Rasimus
3835 South 38th Street
Greenfield, Wisconsin 53221
(w/o enclosures)

Ms. Barbara Loscalzo

Senior Associate Counsel
Lockheed Martin IMS
Glenpointe Center East
Teaneck, New Jersey 07666
(w/o enclosures)


 

Footnotes

1. You did not seek an open records decision from this office within the statutory ten-day deadline. See Gov't Code 552.301. The board's delay in this matter results in the presumption that the requested information is public. See id. 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ). To overcome the presumption that the requested information is public, a governmental body must provide compelling reasons why the information should not be disclosed. Hancock, 797 S.W.2d at 381. The applicability of sections 552.101 and 552.110 generally constitute compelling reasons for nondisclosure. See, e.g., Open Records Decision No. 150 (1977) (presumption of openness overcome by showing that information is made confidential by another source of law or affects third party interests). Therefore, we will address these claimed exceptions.
 

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