|Office of the Attorney General - State of Texas
February 22, 2000
Mr. Marcus W. Norris
Dear Mr. Norris:
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# 132654.
The City of Killeen (the "city") received a request for the winning proposal submitted to the city for its curbside recycling program. You state that the city "takes the position that the bid papers . . . are open to the public, except for the financial statements," which you contend are excepted from required public disclosure pursuant to sections 552.101 and 552.110 of the Government Code.
Section 552.301 of the Government Code dictates the procedure that a governmental body must follow when it seeks a decision from the attorney general as to whether requested information falls within an exception to disclosure. Among other requirements, the governmental body must submit to this office "a copy of the written request for information." Gov't Code § 552.301(e)(1)(B). 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. Despite your representation to the contrary, a copy of the written request received by the city was not included among the documents you submitted to this office in connection with your request for an open records decision. However, because the applicability of sections 552.101 and 552.110 of the Government Code constitute "compelling" reasons for withholding information from the public, we will in this instance consider your claims under these exceptions.
Section 552.101 protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information coming within the common law right to privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Common law privacy protects information if it is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and it is of no legitimate concern to the public. Id. at 683-85. This office has previously recognized that individuals have a common law privacy interest in information reflecting their personal finances. See, e.g., Open Records Decision No. 373 (1983). The documents you have submitted to us for review, however, pertain to the assets and other business dealings of a corporation, as opposed to any particular individual. Corporations do not have a right to privacy. See Open Records Decision No. 192 at 4 (1978). The right of privacy is intended to protect the feelings and sensibilities of human beings; it does not protect information about private corporations. Id. Thus, the corporation has no right of privacy in the information at issue here. This information, therefore, may not be withheld pursuant to section 552.101 of the Government Code.
You next contend that the financial statements at issue are excepted from required public disclosure under section 552.110 of the Government Code because disclosure of this information may impair the city's ability to obtain similar information in the future when seeking other competitive bids or proposals. This is no longer a factor to be considered when considering the applicability of section 552.110. Section 552.110 excepts from required public disclosure
(a) [a] trade secret obtained from a person and privileged and confidential by statute or judicial decision . . . [and]
(b) [c]ommercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained.
You have not demonstrated that the information at issue constitutes a "trade secret" or that the disclosure of this information would result in "substantial competitive harm" to the corporation that submitted the information to the city. We further note that although you notified the corporation about the current request for their financial records, that corporation has not submitted any arguments to this office as to why these documents should be withheld from the public. See Gov't Code § 552.305. We conclude, therefore, that the city must release the information at issue in its entirety.
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.
Noelle C. Letteri
Ref.: ID# 132654
cc: Ms. Patti Mata
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US