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July 23, 1999

Ms. Jennifer D. Soldano
Associate General Counsel
Texas Department of Transportation
Dewitt C. Greer State Highway Building
125 East 11th Street
Austin, Texas 78701-2483

OR99-2076

Dear Ms. Soldano:

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# 126177.

The Texas Department of Transportation (the "department") received a request for an electronic copy of the statewide off-system bridge database. You state that the department has a common-law copyright to its database pursuant to Transportation Code section 201.205. You also assert that the requested information is excepted from required public disclosure based on section 552.110 of the Government Code.

Section 201.205 of the Transportation Code provides in pertinent part as follows:

    (a) The department may

      (1) apply for, register, secure, hold and protect under the law of the United States, any state, or any nation a patent, copyright, trademark, or other evidence of protection or exclusivity issued in or for an idea, publication, or other original innovation fixed in a tangible medium[.]

If requested records are copyrighted, a governmental body is not required to furnish the requestor with copies of such records.(1) Members of the public may inspect copyrighted materials, unless such materials are excepted from public disclosure or otherwise protected by law. See 17 U.S.C. 106, 107; see Attorney General Opinion JM-672 (987), Open Records Decision No. 550 at 8-9 (1990).

You raise section 552.110 of the Government Code. Section 552.110 excepts from disclosure two categories of information: (1) "[a] trade secret" and (2) "commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision." 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. Thus, this office relied on National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974), as a judicial decision and applied the standard set out in National Parks to determine whether information is excepted from public disclosure under the commercial and financial prong of section 552.110. However, the Third Court of Appeals recently held that National Parks is not a judicial decision within the meaning of section 552.110. Birnbaum v. Alliance of Am. Insurers, 1999 WL 314976 (Tex. App.--Austin May 20, 1999, no pet. h.). Because you have not cited to a statute or judicial decision that makes the commercial or financial information privileged or confidential, you may not withhold the requested information under the commercial or financial information prong of section 552.110.

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, 776 (Tex.), cert. denied, 358 U.S. 898 (1958); see also Open Records Decision No. 552 at 2 (1990).(2) You have provided no information to support your claim that the requested information is a trade secret excepted from disclosure based on section 552.110. A governmental body has the burden of proving that an exception applies to requested records. Open Records Decision No. 363 (1983). Thus, we conclude that the department has not established the applicability of section 552.110 to the requested information.

We note that the Public Information Act (the "act") requires a governmental body to "promptly produce public information for inspection, duplication, or both on application by any person." Gov't Code 552.221; see also id. 552.021.(3) The Federal Copyright Act (the "FCA"), title 17 of the United States Code, gives copyright protection to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, whether directly or with the aid of a machine or device."(4)

The Texas Legislature has authorized the department to take steps to protect its intellectual property rights under the FCA. Transp. Code 201.205. Generally, the FCA gives copyright owners the exclusive right to control the use of copyrighted works, including the right "to distribute copies . . . of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." See 17 U.S.C. 106. This right is subject to exceptions, the most important of which may be the "fair use" of the works. See id. 107. The fair use of a copyrighted work includes use "for purposes such as criticism, comment, news reporting, teaching, scholarship or research." See id.

We believe the act and the FCA are compatible. While the act prohibits a governmental body from making an inquiry of a requestor, see id. 552.222, it does not address the subsequent use of public information. The act does not prohibit a governmental body from protecting its copyright by entering into licensing or other use agreements. Thus, we conclude that, while the act requires the department to provide access to or copies of public information, or both, the department may place restrictions on the use of its copyrighted works consistent with the rights of a copyright owner under the FCA.(5) Consequently, the FCA may not be used to deny access to or copies of department information sought under the act.

We are resolving this matter with this 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 may not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL/nc

Ref.: ID# 126177

Encl.: Submitted documents

cc: Mr. Robert E. Ferrell, P.E.
Project Manager
HDR Engineering, Inc.
12700 Hillcrest Road, Suite 125
Dallas, Texas 75230-2096
(w/o enclosures)


 

Footnotes

1. Members of the public may inspect copyrighted materials held as public records, and make copies of such records unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. Attorney General Opinion MW-307 (1981).

2. This office also considers the following six factors in making trade secret determinations: 1) the extent to which the information is known outside of [the company's] business; 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 to [its] competitors; 5) the amount of effort or money expended by [the company] in developing this information; 6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Restatement of Torts, 757 (1939).

3. The act contains thirty exceptions to required public disclosure. Gov't. Code 552.101-.130.

4. The United States Supreme Court's Feist decision eliminated some legal protection for databases. Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991) (mere alphabetical listing of information in telephone directory does not possess minimal degree of creativity, thus not qualifying for copyright protection).

5. We do not believe this office is the proper forum to address the issue of whether the information at issue is copyrightable under the common-law or federal law or whether a particular use of the information is a "fair use" under section 107 of the FCA. See Attorney General Opinion DM-98 at 3 (1992) (attorney general cannot resolve fact questions in opinion process); Open Records Decision No. 426 (1985) (same).
 

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