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December 27, 2000

Mr. William T. Buida
Supervising Attorney
Texas Department of Human Services
P.O. Box 149030
Austin, Texas 78714-9030

OR2000-4837

Dear Mr. Buida:

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# 142646.

The Texas Department of Human Services (the "department") received a request for information on all proposals submitted in response to RFO #GT00014. You have sought a decision from this office pursuant to section 552.305 of the Government Code as to whether the requested information is excepted from required public disclosure. You have submitted certain information responsive to the request. We assume that you have released to the requestor any other information that is responsive to the request. If you have not yet released the other responsive information, you must do so at this time. See Gov't Code 552.301, .302. You indicate that portions of the submitted information may be excepted from disclosure by sections 552.101, 552.110, 552.113, and 552.131 of the Government Code. You have notified Maximus of the request in compliance with section 552.305 of the Government Code. See Gov't Code 552.305(b) (permitting interested third party to submit to attorney general reasons why requested information should not be released). Maximus has responded to the notice asserting that release of two appendices and the cost proposal contained in the submitted information would harm it and place it at a competitive disadvantage. We have considered the claimed exceptions and reviewed the submitted information.

Section 552.110 of the Government Code excepts from disclosure two types of information:

(1) trade secrets obtained from a person and privileged or confidential by statute or judicial decision, and (2) commercial 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.

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 (Tex.), cert. denied, 358 U.S. 898 (1958); see also Open Records Decision No. 552 at 2 (1990). In determining whether particular information constitutes a trade secret, this office considers the Restatement's definition of trade secret as well as the Restatement's list of six trade secret factors.(1) Id. This office has held that if a governmental body takes no position with regard to the application of the trade secret branch of section 552.110 to requested information, we must accept a private person's claim for exception as valid under that branch if that person establishes a prima facie case for exception and no argument is submitted that rebuts the claim as a matter of law. Open Records Decision No. 552 at 5-6 (1990). The commercial or financial branch of section 552.110 requires the business enterprise whose information is at issue to make a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would result from disclosure. See Open Records Decision No. 661 (1999); see also Nat'l Parks and Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).

The only specific argument that Maximus makes with regard to its proposal is that "release of the [two appendices and the cost proposal] would cause us harm and place us at a competitive disadvantage responding to future proposals of similar work." Based on this argument, we do not believe that Maximus has made an adequate demonstration to this office that any information contained in its proposal is confidential for purposes of section 552.110.

Furthermore, while the department raises sections 552.101, 552.113, and 552.131 of the Government Code as possible exceptions to the disclosure of the submitted information, neither the department nor Maximus actually argues that the submitted information is excepted under these exceptions. Moreover, it is not apparent how these exceptions apply to the submitted information. Consequently, we cannot find that the submitted information is excepted from disclosure under sections 552.101, 552.113, and 552.131, and we conclude that the department must release the submitted information, as well as any other remaining requested information, to the requestor.

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 Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497.

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,

Nathan E. Bowden
Assistant Attorney General
Open Records Division

NEB\er

Ref: ID# 142646

Encl: Submitted documents

cc: Ms. Rose Santos
FOIA Group, Inc.
101 S. Whiting Street, Suite 1600
Alexandria, VA 22304
(w/o enclosures)

Mr. Kevin Dorney
Executive Vice President
Systems Planning & Integration Division
Maximus
800 South Street, Suite 460
Waltham, MA 02453


 

Footnotes

1. The six factors that the Restatement gives as indicia of whether information constitutes a trade secret are: "(1) the extent to which the information is known outside of [the company]; (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 [its] competitors; (5) the amount of effort or money expended by [the company] in developing the information; (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 Nos. 319 at 2 (1982), 306 at 2 (1982), 255 at 2 (1980).
 

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