This Freeman Law Insights blog provides a high-level overview of the public’s wide-reaching right to information under the Texas Public Information Act (formerly the Texas Open Records Act) as well as various statutory exceptions that protect professional services firms from otherwise mandatory disclosure of certain records in the possession of a governmental body.
Through years of representing engineer, architecture, and survey firms in Texas – many of whom provide professional services to governmental bodies, such as the Texas Department of Transportation, school districts, municipalities, and others – I have had the opportunity to help protect trade secrets and other competitive or confidential information that may be requested by the public pursuant to the Texas Public Information Act, Chapter 552 of the Texas Government Code.
General Rule and Definition of Public Information.
Under the Texas Government Code, “[p]ublic information is available to the public at a minimum during the normal business hours of the governmental body.” See Tex. Gov’t Code § 552.021. Understandably, the scope of “public information” is broad, favoring open government. Chapter 552 defines “public information,” in relevant part, as follows:
[I]nformation that is written, produced, collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business:
- by a governmental body;
- for a governmental body and the governmental body:
- owns the information;
- has a right of access to the information; or
- spends or contributes public money for the purpose of writing, producing, collecting, assembling, or maintaining the information; or
- by an individual officer or employee of a governmental body in the officer’s or employee’s official capacity and the information pertains to official business of the governmental body.
Information is in connection with the transaction of official business if the information is created by, transmitted to, received by, or maintained by an officer or employee of the governmental body in the officer’s or employee’s official capacity, or a person or entity performing official business or a governmental function on behalf of a governmental body, and pertains to official business of the governmental body.
See id. at § 552.002(a)-(a-1).
Despite the strong public policy favoring open government, the Texas Legislature has recognized that some records, even if in the possession of a governmental body, should not be open for public inspection. To that end, the Texas Government Code includes several important exceptions to the general rule of public disclosure of what may otherwise be “public information” under the Public Information Act.
Confidential Exception.
Section 552.101 of the Government Code provides that information is excepted from required disclosure under Section 552.021, where the information is made confidential by law, either constitutional, statutory, or by judicial decision. See id. at § 552.101. Similarly, Section 552.022 provides a laundry list of records and information that must be disclosed pursuant to Section 552.021 “unless made confidential under this chapter or other law[.]” See id. at § 552.022(a). “Other law” includes judicial opinions (i.e., common law), other statutes, and constitutional protections.
Trade Secret Exception.
Section 552.110(b) of the Government Code states that “information is [excepted from required disclosure] if it is demonstrated based on specific factual evidence that the information is a trade secret.” See Tex. Gov’t Code § 552.110(b). Section 552.110(a) defines a trade secret as all forms and types of information if:
- the owner of the trade secret has taken reasonable measures under the circumstances to keep the information secret; and
- the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through property means by, another person who can obtain economic value from the disclosure or use of the information.
See id. at § 552.110(a). “Except as provided by Section 552.0222, information is excepted from the requirements of Section 552.021 if it is demonstrated based on specific factual evidence that the information is a trade secret.” Id. at § 552.110(b). Thus, this exception is subject to Section 552.0222, which is addressed below.
Commercial or Financial Information Exception.
Section 552.110(c) of the Government Code provides: “Except as provided by Section 552.0222, 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 is excepted from the requirements of Section 552.021.” This exception is also subject to Section 552.0222, which is addressed below.
Bid Information Exception.
Section 552.1101 provides that information submitted to a governmental body by a service provider or potential service provider in response to a request for a bid, proposal, or qualification is excepted from the requirements of Section 552.021 if the service provider that the information relates to demonstrates that disclosure of the information would (1) show the person’s approach to: (A) work; (B) organizational structure; (C) staffing; (D) internal operations; (E) processes; or (F) discounts or other pricing information that will be used in future solicitations; and (2) give advantage to a competitor. See id. at § 552.1101. This exception is also subject to Section 552.0222.
“Contracting Information” – Section 552.0222.
Pursuant to section 552.0222 of the Texas Government Code, “[c]ontracting information is public and must be released unless excepted from disclosure under this chapter.” See Tex. Gov’t Code § 552.0222(a) (emphasis added). Chapter 552 defines “contracting information” as follows:
“Contracting information” means the following information maintained by a governmental body or sent between a governmental body and a vendor, contractor, potential vendor, or potential contractor:
- information in a voucher or contract relating to the receipt or expenditure of public funds by a governmental body;
- solicitation or bid documents relating to a contract with a governmental body;
- communications sent between a governmental body and a vendor, contractor, potential vendor, or potential contractor during the solicitation, evaluation, or negotiation of a contract;
- documents, including bid tabulations, showing the criteria by which a governmental body evaluates each vendor, contractor, potential vendor, or potential contractor responding to a solicitation and, if applicable, an explanation of why the vendor or contractor was selected; and
- communications and other information sent between a governmental body and a vendor or contractor related to the performance of a final contract with the governmental body or work performed on behalf of the governmental body.
See id. at § 552.003(1-a)-(1-a)(E) (emphasis added).
Section 552.0222 provides that the exception to disclosure provided by Sections 552.110 (Trade Secret Exception) and 552.1101 (Bid Information Exception) do not apply to certain types of contracting information and specifically to ten types of contract terms. Those specific types of contract terms are as follows:
- any term describing the overall or total price the governmental body could potentially pay;
- a description of the items or services to be delivered with the total price for each if a total price is identified for the item or service in the contract;
- the delivery and service deadlines;
- the remedies for breach of contract;
- the identity of all parties to the contract;
- the identity of all subcontractors in a contract;
- the affiliate’s overall or total pricing for a contractor or potential contractor;
- the execution dates;
- the effective dates and
- the contract duration terms.
See id. at § 552.0222(b)-(b)(3)(J).
Insights
The above is intended as a high-level overview of the scope of the Texas Public Information Act and key exceptions that may be available for a professional services firm whose trade secrets and other competitive or confidential information may be in the possession of a governmental body.
Certainly, a timely and proper objection must be lodged to the Texas Attorney General (generally within 10 business days of receipt of a request for public information). And the scope, style, and content of the objection are critical to ensure the Texas Attorney General affords the professional services firm appropriate protection from what will otherwise be fully public information.
The experience gained through many wins, losses, and draws in this arena has allowed me to develop an effective approach to prepare and submit objections in response to the public’s request for information that, under Texas law, may be withheld from public disclosure. Client participation and input are critical to advancing an efficient and effective response to a request made pursuant to the Public Information Act, and sometimes, the policy of open government reigns, despite best efforts to limit disclosure of information in the possession of a governmental body.
