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July 21, 2000

Ms. Anne M. Constantine
Legal Counsel
Dallas/Fort Worth International Airport
P/ O/ Drawer 619428
DFW Airport, Texas 75261-9428

OR2000-2755

Dear Ms. Constantine:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137389.

The Dallas-Fort Worth International Airport Board (the "board") received a request for copies of the bid proposals submitted to the prime contractor on the Terminal D Rough Grading Project. You rely on the prime contractor, Austin Commercial, to assert exceptions to required disclosure and to submit arguments for withholding the requested information. You have provided the requested proposals for our review.

Because the property and privacy rights of third parties may be implicated by the release of the requested information, you notified Austin Commercial of the request. However, it is the information of the bidders, Phillips/ May Corporation, Marcon Construction, Inc., Omega Contracting, Inc., Con-Real, Inc., and Meridian Commercial, Inc., that is responsive to the request and that the bidders may consider proprietary. See Gov't Code 552.305 (requiring governmental body to make a good faith attempt to notify a person whose proprietary information may be subject to an exception from disclosure under section 552.101, 552.110, 552.113, or 552.131); 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 Public Information Act in certain circumstances). We see no evidence that the bidders were notified of the request for information relating to them. Had the bidders been notified, the notification would have informed them of the right to submit in writing to the attorney general specific reasons as to why the requested information should be withheld from public disclosure.(1)

This office has not received any arguments or briefs from any of the third parties involved to support a claim that the information should be withheld from public disclosure. Therefore, we have no basis to conclude that the bidders' proposals are excepted from required disclosure. See Open Records Decision Nos. 639 at 4 (1996) (to prevent disclosure of commercial or financial information, party 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), 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990).

As you rely on a third party to raise and establish any exceptions, and as we have received no third party arguments, we have no basis to conclude that any of the submitted information is excepted from required disclosure. Thus, we have no choice but to order the information released per section 552.302 of the Government Code.

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,

Patricia Michels Anderson
Assistant Attorney General
Open Records Division

PMA/pr

Ref: ID# 137389

Encl. Submitted documents

cc: Mr. A. L. Taylor
Owner/President
The Taylor Company General Contractors
2700 North. Stemmons Freeway
Suite 800
Dallas, Texas 75207
(w/o enclosures)

Mr. John Pelczar
Austin Commercial
P.O. Box 610125
DFW Airport, Texas 75261-0125
(w/o enclosures)

Mr. Gilbert May
Phillips/May Corporation
4861 Sharp Street
Dallas, Texas 75247
(w/o enclosures)

Mr. Michael J. Villalobos
Marcon Construction, Inc.
4407 Beltwood, Pkwy. N.
Suite 102
Dallas, Texas 75244
(w/o enclosures)

Mr. Luis Spinola
Omega Contracting, Inc.
2818 Ruder Street
Dallas, Texas 75212
(w/o enclosures)

Mr. Gerald B. Alley
Con-Real, Inc.
1179 Corporate Drive West
Arlington, Texas 76006
(w/o enclosures)

Mr. Anthony A. Hernandez
Meridian Commercial, Inc.
10830 North. Central Expressway
Suite 410
Dallas, Texas 75231
(w/o enclosures)


 

Footnotes

1. The notice you provided to Austin Commercial is substantially in compliance with the required form, which can be found in Appendix C of the 2000 Texas Public Information Handbook. The handbook is available online at the Office of the Attorney General's web site at www.oag.state.tx.us.
 

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