The Texas Open Records Act Policy

(§ 552.001 of the GovernmentCode)

• Preamble of Texas Public Information Act, also known as the "Texas Open Records Act", declares the basis for the policy of open government expressed in the Texas Open Records Act (Texas Public Information Act, Tex. Gov't Code Ann. §§ 552.001- 552.353 (Vernon's 1994).
  
  

Protection of Certain Information Because of Its Confidential Nature

(§ 51.914 of the Education Code)

• In order to protect the actual or potential value of certain information, such information shall be confidential and not subject to disclosure under the Open Records Act (§ 51.914). Subsection (1) of § 51.914 of the Education Code protects "... all technological and scientific information developed in whole or in part at a state institution of higher education… that [has] a potential for being sold, traded, or licensed for a fee."

Applicable Exemptions Under the Open Records Act

(§ 552.110 of the Government Code)

• § 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.
  

Requestor’s Right of Access

(§§ 552.222 and 552.223 of the Government Code)

• The Open Records Act prohibits a governmental body from inquiring into a Requestor’s reasons for requesting information (§ 552.222). A governmental body must treat all requests uniformly (§ 552.223).
  
  

When the Requested Information Involves a Third Party's Privacy Rights or Property Interests

(§ 552.305 of the Government Code)

• When information is requested under the Open Records Act involving a third party's privacy or property interests, a governmental body may decline to release the information for the purpose of requesting a legal opinion from the Attorney General.
  
  
• A person (third party) may submit reasons to the Attorney General why the information should be withheld and not released to the Requestor.
  
  
• Additionally, a governmental body may submit reasons why the information should be withheld or released.
  
  

Criminal Penalties and Civil Remedies Under the Open Records Act

(§ 552.321 & 552.353 of the Government Code)

• The Open Records Act sanctions criminal penalties for either the release of information that should not have been released or the withholding of information that should have been released (§ 552.352).
  
  
• Section 552.321 authorizes a mandamus suit compelling the release of information even if the Attorney General has ruled that such information is exempt from the required public disclosure.
  
  

Exceptions to Public Disclosure – Certain "Commercial Information"

(§ 552.110 of the Government Code)

• Section 552.110 of the Government Code, used in conjunction with § 51.914 of the Education Code, describes two types of commercial information which may be excepted from public disclosure: (1) trade secrets and (2) confidential or financial information obtained from a person. Since this section requires that excepted information be made confidential by statute or judicial decision, its protection may overlap with § 552.101 of the Government Code which excepts from required public disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision.

Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex. 1958)

• In Hyde Corp. v. Huffines, the Texas Supreme Court   adopted the definition for a "trade secret" from the Restatement of Torts § 757. Since an exact definition of a trade secret is difficult, the Restatement lists six factors to  consider when determining whether certain information is a trade secret.
  
  

• Issue: Whether data submitted to the Railroad Commission is excepted from disclosure under the Open Records Act as a trade secret. Holding: The Attorney General must accept a claim for exception as valid if a prima facie case for exception is made and no argument is presented that rebuts such claim for exception as a matter of law.  Whether certain information is a trade secret is a determination of fact using six factors of indicia to make such a determination.
  
  

• In this decision, there was a factual dispute between a governmental body and a proponent of the trade secret protection as to certain elements of a prima facie case. Because the Attorney General cannot resolve such factual disputes (because it is outside the purview of the Attorney General's opinion process), the matter was referred to a governmental body for fact-finding (discussed Hyde Corp. v. Huffines trade secret six factor determination).
  
  

• A consultant, who submitted a proposal related to marketing research, requested copies of the proposals submitted by his competitors. Holding: Such proposals were not a trade secret because the research techniques discussed in the proposals were generally known throughout the marketing industry (but customer lists are, however, exempt from public disclosure).
  
  

• Requestee argued that construction contract bids were excepted from public disclosure until after the contract was awarded, or in the alternative, because it was a trade secret or information which, if released, would give an advantage to competitors or bidders. Holding: These types of contracts are not trade secrets. A showing of actual or potential harm in a specific competitive situation is required to actually create an advantage for competitors. Here, the potential for harm from disclosure of the information was merely speculative and general.
  
  

• A preliminary work program for an audit is a trade secret (six part trade secret test was applied).
  

National Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974)

• This case presents a three part test for determining if commercial or financial information is confidential. In order to bring a matter within the commercial or financial information exception, it must be shown that the information is (a) commercial or financial, (b) obtained from a person, and (c) privileged or confidential.

• This case also defines 'confidential': commercial or financial information is 'confidential' for purposes of the exemption if disclosure of the information is likely to have either of the following effects:  (1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.
  

• This Open Records Act Decision followed the Federal Freedom of Information Act (5 M.S.C. § 552(b)(4)) test for determining if commercial or financial information is confidential as set forth in National Parks & Conservation Ass'n v. Morton.
  
  

• Issue:  Whether research data produced by a university faculty member is "public information" and subject to the Open Records Act.   Holding:  Research data produced by university faculty pursuant to a contract between the university and a third party is information that is collected, assembled, or maintained by a governmental body and that is connected to the transaction of official business. Consequently, the data is public information subject to the Open Records Act, Government Code Chapter 552.  Section 51.914(1) of the Education Code deems confidential "scientific information ... developed in whole or in part at a state institution of higher education" if the information has a "potential for being sold, traded, or licensed for a fee."  Whether particular scientific information has a potential for being sold, traded, or licensed for a fee is a question requiring the resolution of fact issues and such determination is not appropriate in the opinion process.  Thus, the Texas Attorney General's office will therefore rely on the university's assertion that the requested information has such a potential. 
  
  

• Section 51.914 (1) of the Education Code, as applied through § 552.101 of the Government Code, protects from public disclosure information related to the commercial application or use of superconductivity research at the University of Houston.
  
  

• Texas Attorney General concluded that Requestee failed to show how the information at issue met the specific tests developed in the case law and by the Texas Attorney General for either "trade secrets" or "commercial or financial information". The Requestee was directed to review many of the cases and Open Record Decisions referenced above and the following:  AT&T Information Systems, Inc. v. General Services Administration, 627 F. Supp. 1396, 1403 (D.D.C. 1986), rev'd on other grounds, 810 F.2d 1233 (D.C. Cir. 1987); Gulf and Western Industries v. United States, 615 F.2d 527, 530 (D.C. Cir. 1979).