-The following is a copy of the decision by the Attorney General on the March 8, 2007 Open Records Request made by Austin Van Zant and the UT System's consequent arguments against disclosure of certain documents. See the brief made by Austin Van Zant on April 10, 2007 that argues for disclosure of these documents.

June 4, 2007

Ms. Carol Longoria
Office of the General Counsel
University of Texas System
201 West Seventh Street
Austin, Texas 78701-2902

OR 2007-06927

Dear Ms. Longoria:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 278865.

The University of Texas System (the "system") received a request for information maintained by the system pertaining to the UT Watch activist group. You claim that the submitted information is excepted from disclosure under sections 552.104 and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We have also considered comments submitted to this office by the requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released).

Section 552.104 of the Government Code excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't Code § 552.104(a). This exception protects a governmental body's interests in competitive bidding and certain other competitive situations. See Open Records Decision No. 593 (1991) (construing statutory predecessor). This office has held that a governmental body may seek protection as a competitor in the marketplace under section 552.104 and avail itself of the "competitive advantage" aspect of this exception if it can satisfy two criteria. First, the governmental body must demonstrate that it has specific marketplace interests. Id. at 3. Second, the governmental body must demonstrate a specific threat of actual or potential harm to its interests in a particular competitive situation. Id. at 5. Thus, the question of whether the release of particular information will harm a governmental body's legitimate interests as a competitor in a marketplace depends on the sufficiency of the governmental body's demonstration of the prospect of specific harm to its marketplace interests in a particular competitive situation. Id. at 10. A general allegation of a remote possibility of harm is not sufficient. See Open Records Decision No. 514 at 2 (1988).

In this instance, although you acknowledge that the system is no longer involved in bidding for the Department of Energy contract at issue, you assert that the information at issue may be valuable if a similar opportunity arises in the future, and could "undermine [the system's] ability to optimize the financial benefit of future collaborative projects." You also argue that release of the submitted information would put the system at a disadvantage to other research facilities when competing for partnerships. However, beyond the possibility of unidentified future opportunities, you have not identified a specific threat of actual harm to the system. Further, you have failed to demonstrate how release of this particular information could be used by a competitor in a specific competitive situation. Thus, after carefully reviewing your arguments and the submitted information, we find that the system has failed to adequately demonstrate that the release of the submitted information would harm the competitive interests of the system for purposes of section 552.104. See Open Records Decision No. 592 at 8 (1991) (purpose of section 552.104 is to protect governmental body's interests in competitive bidding situation). Accordingly, we conclude that the. system may not withhold any portion of the submitted information under section 552.104 of the Government Code.

Section 552.111 excepts from disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency" and encompasses the deliberative process privilege. See Open Records Decision No. 615 at 2 (1993). The purpose of section 552.111 is to protect advice, opinion, and recommendation in the decisional process and to encourage open and frank discussion in the deliberative process. See Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App. - San Antonio 1982, no writ); Open Records Decision No. 538 at 1-2 (1990).

In Open Records Decision No. 615 (1993), this office re-examined the statutory predecessor to section 552.111 in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App. - Austin 1992, no writ). We determined that section 552.111 excepts from disclosure only those internal communications that consist of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. See Open Records Decision No. 615 at 5. A governmental body's policymaking functions do not encompass routine internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel. Id.; see also City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) (section 552.111 not applicable to personnel-related communications that did not involve policymaking). A governmental body's policymaking functions do include administrative and personnel matters of broad scope that affect the governmental body's policy mission. See Open Records Decision No. 631 at 3 (1995). Additionally, section 552.111 does not generally except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152 (Tex. App. - Austin 2001, no pet.); ORD 615 at 4-5.

You assert that the information in Tabs 5, 6, and 7 consists of opinion, advice, and recommendations pertaining to the system's policy for handling media, public perception, and an internal response to statements made by UT Watch. Based on your representations and our review of the information at issue, we find you have established that the information we have marked under section 552.111 consists of advice, opinion, or recommendations related to system policy. However, the remaining information consists of factual information, fails to reveal the actual advice, recommendation, or opinion at issue, or consists of information created by parties outside of the system. Therefore, section 552.111 is applicable only to the information we have marked in Tabs 5, 6, and 7.

The remaining information also contains e-mail addresses that are excepted from disclosure under section 552.137 of the Government Code, which requires a governmental body to withhold the e-mail address of a member of the general public, unless the individual to whom the e-mail address belongs has affirmatively consented to its public disclosure. See Gov't Code § 552.137 (b). You do not inform us that the owner of any of the email addresses has affirmatively consented to release. Therefore, the system must withhold the e-mail address we have marked under section 552.137.

In summary, you may withhold the information we have marked under section 552.111 of the Government Code. You must withhold the e-mail addresses that we have marked under section 552.137 of the Government Code. The remaining information must be released.

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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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 Office of the Attorney General 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,

Justin D. Gordon
Assistant Attorney General
Open Records Division

JDG/eeg

Ref: ID# 278865

Enc. Submitted documents

c:   Mr. Austin Van Zant
P.O. Box 7080
Austin, Texas 78713-7080
(w/o enclosures)