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September 14, 1999

Mr. Brian K. Bricker
Senior Staff Attorney
The Texas A & M University System
John B. Connally Building
301 Tarrow, 6th Floor
College Station, Texas 77840-7896

OR99-2567

Dear Mr. Bricker:

You ask whether certain information is subject to required public disclosure under the Texas Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 127258.

The Texas A&M University System (the "system") received a written request for "a summary of data used to reach" the determination that "Texas deemed glucosamine hydrochrolide and chondroitin sulfate to be safe in rations or supplements for adult dogs, subject to certain conditions." You explain that this decision "was made in connection with the application for approval by the IAMS Company ("IAMS") of those two substances as ingredients in dog food." You do not contend that the requested information is excepted from required public disclosure, but rather have sought a decision from this office pursuant to section 552.305 of the Government Code, which authorizes governmental bodies to rely on the arguments of third parties as to whether requested information may be withheld from the public.

In accordance with the practice this office established in Open Records Decision No. 575 (1990), this office notified representatives of IAMS that we received your request for an open records decision regarding matters affecting their proprietary interests. In our notification, this office requested an explanation as to why the information at issue was excepted from public disclosure, with the caveat that unless we received such explanation, this office would instruct the system to disclose the information unless the information is otherwise excepted from required public disclosure. IAMS has timely responded to our notice and contends that five specific portions of its records are excepted from public disclosure as "trade secrets" under section 552.110 of the Government Code.

Section 552.110 of the Government Code excepts from required public disclosure "[a] trade secret or commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision." A "trade secret" "may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives [one] an opportunity to obtain an advantage over competitors who do not know or use it." Restatement of Torts 757 cmt. b (1939) (emphasis added). See also Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex. 1958); Open Records Decision Nos. 255 (1980), 232 (1979), 217 (1978). There are six factors to be assessed in determining whether information qualifies as a trade secret.(1) This office must accept a claim that information is excepted as a trade secret if a prima facie case for exemption is made and no argument is submitted that rebuts the claim as a matter of law. Open Records Decision No. 552 at 5 (1990).

Although IAMS has made arguments to demonstrate how the identified portions of its records constitute trade secret information, we do not believe that a prima facie case has been made for all of the information IAMS seeks to withhold. We have marked in brackets, or otherwise indicated the information that the system must withhold pursuant to section 552.110; the remaining information that IAMS has highlighted 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.

Sincerely,

June B. Harden
Assistant Attorney General
Open Records Division

JBH/RWP/nc

Ref.: ID# 127258

Encl. Submitted documents

cc: Ms. Emily Marden
Sidley & Austin
1722 Eye Street, N.W.
Washington, D.C. 20006
(w/o enclosures)

Mr. Patrick Small
FOI Services, Inc.
11 Firstfield Road
Gaithersburg Maryland 20878
(w/o enclosures)

Ms. Kristen E. Blanchard
Director, Legal & Regulatory Affairs
Nutramzx Laboratories, Inc.
2208 Lakeside Boulevard
Edgewood, Maryland 21040
(w/o enclosures)

Mr. D. Jeffrey Ireland
Counsel for The Iams Company
Faruki, Gilliam &L Ireland, P.L.L.
10 North Ludow Street, Suite 600
Dayton, Ohio 45405
(w/o enclosures)


 

Footnotes

These six factors are 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; and 6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

Restatement of Torts 757 comment b (1939); see also Open Records Decision No. 232 (1979).
 

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