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January 12, 2000

Mr. Paul Sarahan
Director
Texas Natural Resource Conservation Commission
P.O. Bo 13087
Austin, Texas 78711-3087

OR2000-0110

Dear Mr. Sarahan:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131212.

The Texas Natural Resource Commission (the "commission") received a request for information that formed the basis for the commission's issuance of a "Notice of Enforcement for Compliance Evaluation Inspection" directed at Equistar Chemicals ("Equistar"). You state that the commission has made some of the requested documents available to the requestor. However, you claim on behalf of Equistar that certain documents not yet made available to the requestor are excepted from disclosure under sections 552.101 and 552.110 of the Government Code. In accordance with section 552.305 of the Government Code, you have notified Equistar of the request. Equistar has responded, stating that it does not object to the release of the "1998 SIP data" which the commission has so far withheld while awaiting a decision from this office. Therefore, the commission must release these documents to the requestor. However, Equistar contends that the remainder of the requested documents are excepted under sections 552.101 and 552.110 of the Government Code. We have reviewed Equistar's arguments as well as the representative sample of documents that it has submitted.(1)

Initially, we note, and you admit, that the commission has failed to follow the requirements of section 552.301 of the Government Code. Section 552.301 dictates the procedure that a governmental body must follow if it wishes to ask the attorney general for a decision determining whether requested information falls within an exception to disclosure. Among other requirements, the governmental body "must ask for the attorney general's decision and state the exceptions that apply within a reasonable time but not later than the 10th business day after the date of receiving the written request." Gov't Code 552.301(d). Otherwise, the requested information "is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information." Gov't Code 552.302.

You state that the commission received the request for information via electronic mail on August 27, 1999. Accordingly, the commission's deadline for requesting an attorney general decision in regard to this request for information expired ten business days later on September 13, 1999. See id. 552.301. However, this office did not receive the commission's request for an attorney general decision until November 10, 1999. Therefore, the commission missed its ten-day deadline. Consequently, absent a compelling reason to withhold the information, the requested records must be released. You argue that the documents affect the interests of Equistar, a third party. This office has held that a compelling reason exists to withhold information when the information affects the interests of a third party. See Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). Accordingly, we will consider Equistar's arguments for withholding the requested information.

Section 552.101 of the Government Code requires withholding, inter alia, information made confidential by statute. Section 382.041(a) of the Health and Safety Code provides in part, with exceptions which do not appear to apply here, that "a member, employee, or agent of the commission may not disclose information submitted to the commission relating to secret processes or methods of manufacture or production that is identified as confidential when submitted." Open Records Decision No. 652 (1997) ruled, however, that if the commission seeks to withhold information from disclosure under section 382.041, it must seek the decision of this office under the provisions of chapter 552 of the Government Code, the Texas Public Information Act. If the information was identified as confidential when it was submitted to the commission, this office will permit withholding the information to the extent a prima facie case is made that the information is a "trade secret."(2) Id.

A "trade secret"

may consist of 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). 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) 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 cmt. b (1939); see also Open Records Decision No. 232 (1979).

Equistar contends that the documents at issue meet the Restatement's definition of "trade secret" and satisfy all six factors. We have reviewed the information and find that Equistar has adequately shown that the documents at issue contain trade secrets. Therefore, the commission must withhold these documents under section 382.041 of the Health and Safety Code, as encompassed by section 552.101 of the Government Code, and under section 552.110(a) of the Government Code. In regard to the set of documents submitted by the commission, the commission must withhold all of the documents except for the 1998 SIP Inspections.(3)

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).

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.

Sincerely,

E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division

EJF/nc

Ref: ID# 131212

Encl. Submitted documents

cc: Ms. LaNell Anderson
3614 Echo Mountain
Kingwood, Texas 77345
(w/o enclosures)


 

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision No. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

2. Equistar also argues that the documents at issue are excepted under the trade secret prong of section 552.110 of the Government Code. Because section 552.110(a) and section 382.041 require identical analyses, we address both arguments by determining whether Equistar has shown that the documents at issue contain trade secrets.

3. The documents to be released are the same ones submitted by Equistar as Attachment 3. The documents to be withheld are the same ones submitted by Equistar as Attachments 1 and 2.
 

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