-The following is a copy of the brief filed by the UT System arguing against disclosure of certain documents requested by Austin Van Zant on March 8, 2007. See Austin Van Zant's brief filed in favor of disclosure of these documents and the Attorney General's June 4, 2007 decision on the eventual disclosure.

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March 29, 2007

Honorable Greg Abbott
Attorney General of Texas
Open Records Division
Price Daniel Building
209 W. 14^th Street, 6^th Floor
Austin, Texas 78701

Re: Public Information Request #4 from Austin Van Zant to the University of Texas System - AG ID# 278865 (See also AG ID# 278730)

Dear General Abbott:

On March 16, 2007 (Day 6) the University of Texas System (U. T. System or "System") submitted a request for opinion on an inquiry from Austin Van Zant. Your office assigned AG ID# 278865 to our submittal.

Upon payment of applicable charges, we will release all the information for which we do not assert an objection to disclosure. We address the balance of the documents as follows:

Section 552.111, Texas Government Code

As we indicated in our initial submittal, we know that certain documents responsive to this request are also responsive to a separate request submitted by State Representative Lon Burnam. That request is currently pending at your office and has been assigned AG ID# 278730.

Because we have already submitted final briefing with regard to Mr. Burnam's request and Mr. Van Zant's request implicates some of the same documents, we will make identical arguments against disclosure. Specific to those documents captured by both requests, we ask that your office address these two requests simultaneously so that diverging opinions are not issued.

It is our position that the overriding exception in this instance is Section 552.111, Texas Government Code and that all the submitted information can be classified as "agency memoranda."

We have separated in TAB 5 those documents responsive to both this request and Mr. Burnam's request (See AG ID# 278730). These documents were used to make policy decisions related to the System's bid to secure the Department of Energy ("DOE") contract to manage and operate the Los Alamos National Laboratory (LANL). Because these documents discuss issues and proposed methods of action at a point in time when bidding for the DOE contract was ongoing, these internal discussions constitute advice, recommendations and opinions that affected System policy decisions.

Section 552.111 of the Public Information Act ("Act") exists, "to encourage frank and open discussion within an agency in connection with its decision making processes" pertaining to policy matters. Because the documents at issue pertain to our internal policy decisions and the process by which the System pursued the LANL bid, we consider them to be agency memoranda encompassed by Section 552.111, Texas Government Code.

We believe that Section 552.111, Texas Government Code protects the subject documents because they are intrinsically advice, recommendations, and opinions generated at a time when the System was in active bidding for the DOE project. Had the System and its partners been successful in securing the LANL bid, the fruit of these discussions would have resulted in changes impacting the entire U. T. System and its campuses.

The information, including advice, opinions and recommendations, contained in these documents is part of the deliberative process whereby the System's Office of Public Affairs ("OPA") opined about how the media and public perceive the LANL project and the System's interest in securing that bid. One of OPA's primary functions is to obtain and use feedback from many sources to advise System administrators how best to handle media inquiries in light of public perception. In OR2004-7973 your office opined specifically on these functions and upheld the System's exceptions. In the present case, the basis for creating these documents is consistent with the noted opinion; however these media inquiries were specific to the LANL bid.

Because of the generally negative connotations ascribed to entities engaging in nuclear research, even expressed interest in a project like the LANL will cause a ripple of attention and the requisite media inquiries to follow. When these requests come, OPA is the department charged with handling questions and/or advising senior administrators how best to detail the System's position when conversing with the media.

The public's perception of the U. T. System and its campuses inevitably affects the System's broad educational policy. Our success in cultivating and maintaining good media relations either strengthens or weakens the System's reputation in the community, state, and nation. When, as in these documents, OPA offers direction or insight to administrators when responding to media inquiries about the LANL, or in anticipation of such inquiries, it necessarily encompasses advice, recommendations and opinions. Some exchanges specifically provide suggested methods by which the System can address particular issues to focus on how they benefit and compliment the System's broad-based educational goals.

OPA also created the documents in TAB 6; however, we have separated this information because it is not included in Mr. Burnam's request. Because this information still pertains to the LANL project however, we believe the previous arguments articulated still apply.

Having a System department with this accumulation of information, is an invaluable resource to the System as a whole. OPA often provides expertise and educated interpretations on the public's perception of the System, simply based on the temperature of media coverage at any given time. This kind of perspective allows System administrators to gauge their success with the public in broaching new issues, or reflect on their handling of current concerns. On issues that warrant comment from a particular administrator or official, OPA assists the System by providing guidance as to appropriate times and places to publicly address media inquiries, as well as providing a sounding board to test proposed responses and anticipate media reaction.

Because of the sensitivity of the LANL bid and an expectation of negative publicity due to the lab's involvement in nuclear research, OPA's expertise was especially important and relevant to the handling of these inquiries. We believe that Section 552.111, Texas Government Code protects the subject documents because this information is intrinsically advice, recommendations, and opinions from OPA and administrators pertaining to these media inquiries.

The submitted documents reveal internal discussions and the System's deliberative process specific to the LANL bid; they also reveal the thought processes of OPA staff as communicated to senior administrators. These insights and comments were used internally to generate discussion and debate about the System's position on key LANL issues and the corresponding media coverage. Accordingly, we assert that this information is protected from disclosure under 552.111, Texas Government Code.

Finally, we submit a separate document that is also agency memoranda but unrelated to the LANL bid. Because of the ambiguous language in the request, we cannot ascertain whether or not this document is responsive to "information gathering," because it would not exist but for U. T. Watch having first provided information to the System.

Specifically, in 2003 the System received from U. T. Watch a document entitled: Budget Analysis of the University of Texas at Austin: a Students' Perspective. This document itself will be released to the requestor; however, we propose to withhold an internal analysis generated in response to the U. T. Watch document.

The email in TAB 7 is a point-by-point rebuttal to the policy questions raised by the U. T. Watch document. Because the latter was provided to the System's Board of Regents ("Board"), the System's Office of Academic Affairs and the University of Texas at Austin's Chief Financial Officer collaborated in an analysis that would address and clarify, for the Board, the issues raised by U. T. Watch.

The Board may ultimately approve any broad-based decisions based on established policy approaches,; therefore, protecting open dialogues between their administrators assures that the Board can exercise their statutory management responsibilities. The creation and review of these internal analyses assures the Board that all aspects of proposed policy applications have been adequately investigated and tested before approval is sought.

As we have articulated, Section 552.111 of Act protects internal discussions pertaining to an agency's decision making processes on policy matters. Became the submitted information dissects budget policy questions raised by the U. T. Watch analysis, we consider these documents to be agency memoranda encompassed by Section 552.111, Texas Government Code. This section is applicable because System administrators offered advice, recommendations, and opinions as a result of U. T. Watch proposals submitted to the Board. Decisions made regarding the System and campus budgets inevitably affect the System's broad educational policy.

Section 552.104, Texas Government Code

Alternatively, we believe submitted information specifically pertaining to the LANL bid is protected under Section 552.104, of the Act. In two previous Attorney General opinions related to LANL, the System protected documents under this exception. See OR2004-5255 and OR2004-7973. When the two noted opinions were issued, the bidding process for LANL was ongoing and so this exception clearly applied.

While the System did not ultimately secure the LANL contract, the requested documents do remain valuable. Having captured the System's internal discussions at that time, the lessons learned and vetted through the bidding process, now comprise a wealth of information that the System didn't previously have when bidding for the LANL. Now, after participating in the extensive process of building a coalition team, crafting a bid proposal of this magnitude, vying for a DOE contract, and managing intense media interest regarding the project, should a similar opportunity arise in the future, the System has a decided advantage over other entities with little or no experience.

We believe that responsive documents contain details that, if released, would weaken the System's competitive advantage in the marketplace by placing confidential business plan and strategy information in a public forum. It is important to the System that these insights are not lost or compromised as a result of this request.

In Open Records Decision Number 593 (1991) the attorney general held that a government body may, in certain situations, be deemed a marketplace "competitor" and thus may withhold information from public disclosure where the governmental body has specific marketplace interests and where disclosure of the requested information could cause specific harm to legitimate marketplace interests of the government body.

This open record request seeks access to documents related to the System's vision for a collaborative partnership between our institution and the LANL. As both entities have a common interest in pursuing advancement in specialized research technologies, both the System and LANL would have been partnered competitors in the marketplace with regard to any research discoveries and any subsequent licensing of technology stemming from this collaborative process. Had the System secured the LANL bid, we would have been partnered to provide a "service" or "good" by licensing technology and inventions to other researchers and, most notably, to the United States government for purposes of homeland security.

Notwithstanding the loss of the LANL bid, the extent to which the System's marketplace interests would be harmed by the release of this information can be gauged by considering the array of similar projects in which the System and its campuses have been or are currently involved: LANL[1], Sandia National Laboratories[2], the U. T. Permian Basin High Temperature Teaching and Test Reactor ("HT³R") Project[3], and FutureGen.[4] Currently another System campus is in the final running to secure the National Bio and Agro-Defense Facility.

All of these projects have been, or are, collaborative efforts whereby System campuses have contributed time, talent and resources to assist with, or vie for, federal projects that focus on the research of alternative technologies, including those harnessing nuclear energy. Collaborative partnerships facilitate the continuation of innovative research and technological discoveries enabling the System and its campuses to be competitive with other research facilities when seeking to secure grants and research-related third party contracts, including those available through the federal government.

Thus, release of the information requested would give an advantage to other research facilities and compromises the System's position in a competitive market. The System also becomes less attractive when seeking partnerships if there can be no avenue to protect sensitive information from disclosure under the Act. As we have shown, there is undoubtedly a marketplace interest for the System to establish ties with research entities focused on emerging technologies.

These projects have surfaced just in the last four (4) years and, the System believes, reflect a growing trend of the types of technologies that have the most potential for development and funding. The noted projects support our belief that increasingly the faculty and staff of the country's elite colleges and universities will be highly recruited to participate in similar collaborative research projects. These individuals are valuable to such ventures because of their subject-matter expertise and highly-specialized scientific background. The System and its campuses figure to be high on the list of such sought-after institutions.

Clearly the System is not averse to the pursuit of emerging technologies and cutting-edge research. On the contrary, with our involvement in each subsequent project the System has gained notoriety and recognition as a forward-thinking entity. Thus, when collaborators consider investing in a new project, working with an established institution that has capitalized on past opportunities to develop alternative technologies, is highly preferable. In this way, investors and collaborators benefit from the institution's lessons learned making use of the positive experiences while re-working approaches that were less than ideal in previous projects. It is this experiential knowledge that the System has gained in recent years that is valued by potential collaborators.

Accordingly, protecting the requested documents from disclosure secures the investment of the state of Texas by encouraging the System's financial well-being, and potentially protects taxpayers from incurring increased costs to support the research activities of their higher education institutions.

If the details of the System's business plans, internal project discussions, and public relations strategies were made public, this would undermine our ability to optimize the financial benefit of future collaborative projects. Further, this would prove a substantial hindrance for the state because the System would be at a decided disadvantage in comparison to private entities that are not subject to the Act. When otherwise confidential information can be obtained through the Act, the System is no longer on equal footing with private companies in the research field looking to partner and penetrate the same technology areas. If this information were to be publicly disclosed it would undermine the System's ability, now and in the future, to market its research discoveries to, and/or partner with, interested third parties, including the federal government.

Regardless of the success or failure of the partnership in the bid for the LANL, the documents at issue still retain their internal value because they outline germane factors considered while pursuing that contract. In retrospect, the lessons learned from the process and the ability to apply this knowledge to future opportunities may become the foundation for future successes. We therefore assert that the requested information is excepted in its entirety from disclosure under Section 552.104, Texas Government Code.

To summarize, we ask that your office review the outlined exceptions under Sections 552.104 and 552.111, Texas Government Code. Additionally, we ask that you review and consider any third party arguments that may be submitted to your office and issue a ruling as to their applicability.

All interested parties are listed below. If you need additional information, please do not hesitate to contact me at (512) 499-4521.

Sincerely,

Carol Longoria

INTERESTED PARTY:

cc: Requestor:

Austin F. Van Zant
PO Box 7080
Austin, TX 78713-7080
(W/O enclosures)

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Footnotes

[1] See OR2004-5255, OR2004-7973

[2] See OR2005-03753

[3] See OR2006-07627 and OR2006-07794

[4] See OR2006-08860