DIANE M. HENSON, Justice.
Boeing Company appeals from the district court's final judgment denying Boeing's request for declaratory and injunctive relief under the Texas Public Information Act (PIA). See Tex. Gov't Code Ann. §§ 552.001-.353 (West 2004 & Supp. 2010). Boeing brought suit seeking to prevent disclosure of portions of a real property lease agreement between Boeing and The Greater Kelly Development Authority n/k/a The Port Authority of San Antonio ("the Port"). The final judgment denies Boeing its requested relief and orders that the information at issue be made available to the requestor. We affirm the district court's judgment.
Boeing is a major aerospace company, providing goods and services to both the private and public sectors.
According to Boeing, these lease negotiations continued for more than two years and involved more than twelve Boeing employees. In addition, Boeing hired outside consultants to develop a "competitive range" model with respect to any proposed lease terms. Through negotiations, Boeing sought to obtain lease terms within this competitive range in order to assure its ability to compete for future government contracts from the Kelly location.
According to the Port, in order to induce Boeing to relocate to San Antonio, the City of San Antonio secured a $32.5 million loan from the U.S. Department of Housing and
At Kelly, Boeing's work has consisted primarily of aircraft maintenance and modification for the United States Air Force. Among the aircraft serviced by Boeing at Kelly are the C-17 Globemaster, the C-130 Hercules cargo aircraft, and the KC-135 Stratotanker. Under contracts with the Air Force, Boeing is responsible for upgrading and maintaining these aircraft as necessary. For example, Boeing services K-135s, Eisenhower-era tankers which provide in-flight refueling, by doing complete upgrades and periodic inspections to determine if the airplanes are safe to continue in operation. Similarly, Boeing upgrades C-17s, an aircraft used in both military and humanitarian missions, by making their configurations more uniform and thus easier to fly and maintain. Boeing also installs defensive countermeasures on the C-17s, allowing the aircraft to thwart missile attacks when supplying forces in hostile areas. Finally, Boeing is responsible for modernizing the avionics of over two hundred C-130s, a four engine turbo-prop cargo plane that has been in continuous use for more than fifty years.
In 2005, Robert Silvas made a request under the PIA for, among other things, the Lease between Boeing and the Port.
Boeing then filed suit against the attorney general and the Port, challenging the attorney general's ruling.
On appeal, Boeing asserts that the trial court erred in ordering disclosure of the Lease information. Specifically, Boeing asserts in three issues that (1) the Lease information is a trade secret, and therefore protected from disclosure under section 552.022 as "expressly confidential under other law," (2) Boeing has standing to invoke section 522.104 of the PIA, and (3) the Lease information would give advantage to a competitor or bidder and therefore is protected from disclosure under section 522.104 of the PIA.
In an appeal of a bench trial, findings of fact issued by the trial court have the same force and effect as a jury verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). Unchallenged findings of fact are binding on an appellate court unless the contrary is established as a matter of law or there is no evidence to support the finding. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696-97 (Tex.1986). As the fact finder, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id.
We review a trial court's conclusions of law de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). Similarly, issues of statutory construction are questions of law that are reviewed de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). In construing a statute, our primary objective is to determine the legislature's intent, which, when possible, we discern from the plain meaning of the words chosen. Id. Accordingly, once the facts are established, a determination of whether an exception under the PIA applies to support the withholding of public information is a question of law. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 357 (Tex.2000).
The express purpose of the PIA is to ensure public access to complete information about the affairs of government and its public officials and employees. See Tex. Gov't Code Ann. § 552.001(a) (West 2004). Through this access to information, the public "may retain control over the instruments they have created." Id. Consistent with this policy, the legislature has mandated that the PIA is to be liberally construed in favor of granting requests for information. Id. § 552.001(b).
Under the PIA, information that is collected, assembled, or maintained by or for a governmental body is public information. Id. § 552.002(a) (West 2004). Public information is available upon request and may not be withheld from disclosure unless it falls within an exception to disclosure provided for in the PIA. In re City of Georgetown, 53 S.W.3d 328, 331 (Tex.2001) (orig. proceeding); Arlington Indep. Sch. Dist. v. Texas Attorney Gen., 37 S.W.3d 152, 157 (Tex.App.-Austin 2001, no pet.). The exceptions to disclosure under the PIA are to be narrowly construed. Arlington Indep. Sch. Dist., 37 S.W.3d at 157. A governmental body that wishes to withhold requested information must request a determination from the attorney general, asserting which exceptions under the PIA permit the governmental body to withhold the information. Id. A governmental body generally waives any exception to disclosure that it fails to raise before the attorney general. Tex. Gov't Code Ann. § 552.326 (West 2004).
In addition, section 552.022 of the PIA sets out categories of public information that are excluded from the exceptions provided for in the PIA. Texas Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 114 (Tex.2011); see Tex. Gov't Code Ann. § 552.022 (West 2004). Requested information that falls within one of these categories is considered core public information and must be disclosed unless it is "expressly confidential under other law," meaning law other than the PIA. Tex. Gov't Code Ann. § 552.022(a); Cox Tex. Newspapers, 343 S.W.3d at 114; see also In re City of Georgetown, 53 S.W.3d at 331. Information in a contract relating to the receipt or expenditure of public or other funds by a governmental body is a category of information considered core public information under section 522.022(a)(3). See Tex. Gov't Code Ann. § 552.022(a)(3).
In this case, the trial court found that the Lease is a "contract relating to the receipt or expenditure of public or other funds of a government body." Accordingly, the court concluded that disclosure of the Lease information is governed by 522.022(a)(3). Boeing does not dispute that the information sought is public information or that it is core public information under section 552.022(a)(3). Rather, Boeing argues that the Lease information is a common-law trade secret and therefore protected from disclosure under section 552.022 as "expressly confidential under other law." See id. § 552.022(a). Boeing also contends that the Lease information falls within section 552.104, which excepts from disclosure information — even core public information — that if disclosed would "give advantage to a competitor or bidder." Id. § 552.104(b) (West 2004).
We turn first to whether the Lease information is "expressly confidential under other law" and therefore exempt from the mandatory disclosure requirement of section 522.022. At trial and now on appeal, Boeing argues that the Lease information is "expressly confidential under other law" because it is a common-law trade secret. This Court has previously recognized that common-law trade-secret information is treated as confidential and exempt from mandatory disclosure under section 552.022 of the PIA. See Center for Econ. Justice v. American Ins. Ass'n, 39 S.W.3d 337, 348 (Tex.App.-Austin 2001, no pet.) (finding that common-law trade-secret information is confidential and entitled to protection from disclosure, even though otherwise subject to mandatory disclosure under section 522.022); see also Tex.R. Evid. 507 (trade-secret privilege); In re City of Georgetown, 53 S.W.3d at 337 (noting that documents privileged or confidential under Texas Rules of Civil Procedure or Texas Rules of Evidence are "expressly made confidential under other law" under section 522.022). Because the Lease information is exempt from mandatory disclosure under section 522.022 if it is a trade secret, we next examine whether the Lease information constitutes a common-law trade secret.
At trial, Boeing had the burden of establishing that the Lease information is a trade secret. See Trilogy Software, Inc. v. Callidus Software, Inc., 143 S.W.3d 452, 467 (Tex.App.-Austin 2004, pet. denied). Unless established or disproved as a matter of law, the existence of a trade secret is a question of fact. See Rusty's Weigh Scales & Serv., Inc. v. North Tex. Scales, Inc., 314 S.W.3d 105, 109 (Tex.App.-El Paso 2010, no pet.) (explaining that appellant had burden at trial to present evidence of existence of trade secret to support findings of fact on misappropriation-of-trade-secret claim); see also Zoecon Indus. v. American Stockman Tag Co., 713 F.2d 1174, 1179 (5th Cir.1983) ("Whether customer information is generally known or readily ascertainable is a question of fact."). As the fact finder, the trial court found that the Lease information is not a trade secret. This Court is bound to this finding unless the evidence demonstrates, as Boeing contends it does, that the Lease information is a trade secret as a matter of law. See McGalliard, 722 S.W.2d at 696-97. The Lease information is a trade secret as a matter of law only if we determine, after examining the entire record, that the evidence conclusively establishes that the Lease information is a trade secret. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001).
A trade secret is any formula, pattern, device, or compilation of information which is used in one's business and presents an opportunity to obtain an advantage over competitors who do not know or use it. In re Bass, 113 S.W.3d 735, 739 (Tex.2003) (orig. proceeding). It is a process or device for continuous use in the operation of the business and generally relates to the production of goods. Trilogy Software, Inc., 143 S.W.3d at 463 (citing Hyde Corp. v. Huffines, 158 Tex. 566, 314 S.W.2d 763, 777 (1958)). To determine whether a trade secret exists, we weigh six non-exclusive factors:
In re Bass, 113 S.W.3d. at 740 (citing Restatement of Torts § 757 cmt. b (1939); Restatement (Third) of Unfair Competition § 39 reporter's n. cmt. d (1995)). A determination of whether information qualifies as a trade secret must be made through a comparative evaluation of all the relevant factors and surrounding circumstances, including the value, secrecy, and definiteness of the information. Id. at 739.
Consistent with these first three factors, we recognize that a trade secret must be secret. See McClain v. State, 269 S.W.3d 191, 195 (Tex.App.-Texarkana 2008, no pet.); Stewart & Stevenson Servs., Inc. v. Serv-Tech, Inc., 879 S.W.2d 89, 96 (Tex.App.-Houston [14th Dist.] 1994, writ denied). While absolute secrecy is not required, a substantial element of secrecy must be demonstrated. See Trilogy Software, 143 S.W.3d at 467 ("Before information can be a `trade secret' there must be a substantial element of secrecy."); Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 634 (Tex. App.-Fort Worth 2007, pet. denied). A substantial element of secrecy exists when the information is not generally known or readily ascertainable by independent investigation. Trilogy Software, 143 S.W.3d at 467; see McClain, 269 S.W.3d at 195 (noting that substantial element of secrecy exists when there would be difficulty in acquiring information except by use of improper means). The party claiming trade-secret status has the burden of establishing secrecy. Trilogy Software, 143 S.W.3d at 467.
At trial, David Bouse, former director of human resources for Boeing, testified that the Lease is not publicly available, such as through Boeing's internal or external websites. He also testified that the Lease is kept in a file cabinet in the office of Boeing's facility manager and that access to the Lease within Boeing is limited to senior staff members in finance and management. With regard to first and second factors, the undisputed evidence demonstrates that Boeing has not generally made the Lease information known outside its business and has limited its availability to certain employees within Boeing.
Also relevant to the determination of whether the Lease information is secret is the third factor, the extent of measures taken to guard the secrecy of the information. See In re Bass, 113 S.W.3d at 740. A party that fails to take reasonable precautions to secure the secrecy of its information cannot claim that the information constitutes a trade secret. See Phillips v. Frey, 20 F.3d 623, 630-31 (5th Cir.1994) (explaining that outside any confidential relationship, one who voluntarily discloses secret information or fails to take reasonable precautions to secure its secrecy cannot properly claim that information constitutes trade secret (citing Interox Am. v. PPG Indus., Inc., 736 F.2d 194, 202 (5th Cir.1984))). While information disclosed to another party does not necessarily lose its secrecy, the disclosure must be made in a manner that places a duty on the receiving party not to disclose or use the secret. Id. at 630 (noting that owner of trade secret will not lose secrecy by disclosure if he creates duty in some manner and places that duty upon another not to disclose or use secret).
Under the fourth factor, we consider the value of the information to Boeing and its competitors. See In re Bass, 113 S.W.3d at 740. At trial, Bouse testified that the bidding process for the government contracts upon which Boeing's work is based is extremely competitive, with much of the overhead dictated by the federal government. Bouse also testified that if the Lease information were released, a competitor could do "a build-up of the total cost of the lease to Boeing, which is a substantial portion of [Boeing's] overhead expense at Kelly Air Force Base." According to Bouse, with this information a competitor could "locate other suitable air fields around the United States, enter into negotiations with municipalities in those parts of the country and get much more favorable deals than what we have on the table and put us [at] a competitive disadvantage in retaining the current work that we have."
However, this argument fails to take into account the myriad of other factors that might influence the cost of any lease a competitor might obtain from other municipalities, such as size and location of the property. This argument also assumes that lease cost is the sole determining factor in bids for a government contract.
Based on our review of the record, the evidence fails to conclusively establish that the Lease information is a trade secret. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005) ("Evidence is conclusive only if reasonable people could not differ in their conclusions, a matter that depends on the facts of each case."). Because Boeing has not shown that the information it seeks to protect is a trade secret as a matter of law, we are bound to the trial court's finding that it is not. See McGalliard, 722 S.W.2d at 696 (findings of fact are binding on appellate court unless contrary is established as matter of law or there is no evidence to support finding). Based on this finding, the court did not err in concluding that trade-secret law does not protect the Lease information from mandatory disclosure under section 522.022. Boeing's first issue is overruled.
We now turn to whether the Lease information is excepted from disclosure under section 552.104 of the PIA. Under this section, information that would give advantage to a competitor or bidder if released is excepted from disclosure. Tex. Gov't Code Ann. § 552.104(a). Section 552.104 is a unique PIA exception because it expressly provides that the disclosure mandate normally applicable to core public information under 552.022 does not apply. Id. § 552.104(b). In other words, this exception to disclosure applies even when the information at issue is core public information, like the Lease information in this case. Id. Boeing argues that the trial court erred in concluding that (1) Boeing lacks standing to assert section 552.104 as a basis for withholding the information at issue and (2) that section 552.104 does not except the information at issue from disclosure. We first decide the threshold issue of whether Boeing has standing to assert this exception.
The standing issue presented in this case is whether the PIA affords a private party, like Boeing, the right to enjoin a governmental body from disclosing public information on grounds that it is excepted from disclosure under section 552.104.
Boeing counters that the trial court's conclusion that section 552.104 may not be invoked by a private party is contrary to the plain and reasonable reading of the statute. Boeing contends that section 552.104 protects any information that would "give an advantage to a competitor" without limitation. Since only private parties have competitors, Boeing reasons, the exception necessarily protects private interests.
However, even assuming that section 552.104 protects the interest of private parties, as Boeing argues, it does not follow that the legislature intended for a private party to have the right to prohibit a governmental body from disclosing information on this basis. In this case, Boeing's assertion of section 552.104 is premised on the assumption that the government is prohibited from disclosing information that is excepted under section 552.104. For the reasons set forth below, we find that a plain reading of the PIA shows that section 552.104 is a purely discretionary exception. That is, if section 522.104 applies to information — even core public information — the exception from disclosure may be waived by the governmental body, unless disclosure is "prohibited by law" or the information is "confidential under law." Boeing does not assert that disclosure of the Lease information is "prohibited by law" or that the Lease information is "confidential under law," other than trade-secret law, an argument which we have already rejected. The Port can waive, and in effect has waived, any claim to withhold the information under section 552.104. Tex. Gov't Code Ann. § 552.326 (West 2004). Because the waiver decision belongs solely to the governmental body, the trial court did not err in concluding that Boeing has no right under the PIA to assert section 552.104 to enjoin the Port from disclosing the Lease information.
When determining a private litigant's rights under a statute, like the PIA, our duty is to ascertain the legislature's intent. See Brown v. De La Cruz, 156 S.W.3d 560, 562 (Tex.2004); Abbott v. Texas Dept. of Health & Mental Retardation,
We also give due consideration to attorney general decisions in cases involving the PIA, under which the attorney general is mandated to determine the applicability of exceptions to disclosure. Rainbow Grp., Ltd. v. Texas Emp't Comm'n, 897 S.W.2d 946, 949 (Tex.App.-Austin 1995, writ denied). In interpreting section 552.104, the attorney general has previously ruled that section 552.104 can be waived by a governmental body and, further, is designed to protect the interests of a governmental body, not a private party. See Tex. Att'y Gen. OR1991-592, 8 (determining that PIA exception 3(a)(4), now section 552.104, can be waived by governmental body); see also Tex. Att'y Gen. OR1998-514, 2 (noting that PIA exception, now section 552.104, protects government purchasing interests); Tex. Att'y Gen. OR1988-509, 4 (same). While these decisions are not controlling, because the interpretation urged in the decisions is reasonable when the statute as a whole is considered, we find them persuasive. See City of Dallas, 304 S.W.3d at 384 (noting that attorney general's interpretation of PIA may be persuasive, though not controlling).
Under the PIA, a governmental body must make public information available upon request unless excepted under the PIA. See generally Tex. Gov't Code Ann. §§ 552.101-.1425 (West 2004 & Supp. 2010). That is, a governmental body is not required to disclose public information if the information falls within one or more specific exceptions set forth in the PIA.
Instead, the plain language of the PIA permits, but does not require, a governmental body to withhold public information that falls within an exception under the PIA. This discretion is derived from section 552.007 of the PIA, which states:
Tex. Gov't Code Ann. § 552.007(a) (West 2004). This section makes clear that a governmental body may voluntarily disclose any public information, even when
Further, there is nothing that indicates that section 552.104 itself creates a class of information that is "confidential under law." See Birnbaum, 994 S.W.2d at 776 (finding that section 552.112 under the PIA is "a permissive exception" and explaining that section 552.112, excepting certain information in governmental reports regarding financial or securities institutions, does not "itself create a class of information that is confidential under law"). Even if we were to interpret section 552.104 broadly, as Boeing suggests, to include any information that would give an advantage to a private party's competitor without limitation, there is no indication that such information is considered confidential under the PIA or any other law. When the legislature has intended to make information confidential, it has done so in express terms. Id. For instance, section 552.132 of the PIA expressly makes confidential certain information regarding crime victims. Tex. Gov't Code Ann. § 552.132 (West Supp. 2010). Similarly, credit card and debit card information is expressly confidential under the PIA. Id. § 552.137 (West 2004). There is nothing in the PIA that suggests that the legislature intended information excepted under section 552.104 to be treated as confidential. Further, there is nothing that would suggest that information "that would give an advantage to a competitor" is considered confidential under any other law, including statutory law, constitutional law, or judicial decisions. See id. § 552.101 (West 2004). Therefore, section 552.104 is a discretionary exception which can be waived by the governmental body. See Birnbaum, 994 S.W.2d at 776 (finding that section 552.112 is permissive exception that government may waive in its discretion). Absent a showing that disclosure of the Lease information is specifically "prohibited by law" or "confidential under law," it is within the Port's discretion to waive any claim to withholding under section 552.104.
Neither the trial court's findings nor evidence in the record would support the conclusion that disclosure of the Lease information is "prohibited by law" or that the information is "confidential under law." In this case, the trial court did not find that disclosure of the Lease information is
Boeing asserts that the plain language of the exception protects any information that "would give advantage to a competitor or bidder" and, since the government has no competitors, the exception can only reasonably be construed as protecting private parties. While it may be true, at least to some degree, that the government is not a competitor or a bidder, it does not follow that the government has no interest in protecting competitive bidding on government contracts. While a disclosed bid might certainly give a bidder unfair advantage, i.e., the opportunity to underbid, the government has an interest in maintaining the integrity of the bidding process, which is furthered by section 152.104. See, e.g., Orion Research, Inc. v. EPA, 615 F.2d 551, 554 (1st Cir.1980) (holding that disclosure of bid to competitor under Freedom of Information Act would have "chilling effect" on willingness of potential bidders to submit bids in future). In any event, regardless of any private interest in protecting the material, the broad interpretation urged by Boeing ignores the import of section 552.007. See City of Dallas, 304 S.W.3d at 384 ("We presume that the Legislature intended all provisions of a statute to be effective, and that it intended a just and reasonable result."); see also Birnbaum, 994 S.W.2d at 776 (rejecting interpretation that PIA section 552.007 prohibits release of public information in which there is third-party property or privacy interest). Based on the plain language of the statute as a whole, the PIA cannot reasonably be interpreted in a manner that would permit Boeing to prohibit disclosure of the Lease information.
Boeing cites several federal cases for the proposition that, under an analogous provision
First, the federal cases cited by Boeing interpret and apply Exemption 4 of FOIA, which does not mirror section 552.104. Exemption 4 protects from disclosure "trade secrets and commercial or financial information obtained from a person and privileged and confidential" and therefore is nearly identical to section 552.110 of the PIA, not section 552.104. 5 U.S.C.A. § 552(b)(4) (West 2007). Further, these cases do not support the proposition that a private party may necessarily preclude a governmental body from disclosing information that is excepted under the PIA. See Canadian Commercial Corp., 514 F.3d at 39 (noting that Trade Secrets Act requires agencies to withhold information under Exemption 4); McDonnell Douglas Corp., 375 F.3d at 1185 ("Exemption 4 does not itself prohibit an agency from disclosing commercial or financial information; it provides only that an agency is not compelled to disclose such information."); McDonnell Douglas Corp., 180 F.3d at 305 (noting that if information falls within Exemption 4, "it simply means that the government is not compelled to disclose it"). Rather, these cases are consistent with United States Supreme Court's recognition, more than thirty years ago, that Congress "did not design the FOIA exemptions to be mandatory bars to disclosure." Chrysler Corp. v. Brown, 441 U.S. 281, 293, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979).
Boeing also cites two cases from other states, Arkansas and Kentucky, which Boeing asserts have provisions similar or identical to section 552.104 of the PIA. In Marina Management Services, Inc. v. Commonwealth of Kentucky, a private party asserted that audited financial reports submitted to the Kentucky government were prohibited from disclosure under the Kentucky Open Records Act. 906 S.W.2d 318, 319 (Ky.1995). The Kentucky Supreme Court held that the government could not disclose the requested information. However, the statutory provision at issue in that case exempted from disclosure "records confidentially disclosed to it, generally recognized as confidential or
Similarly, the Arkansas Supreme Court held that a proposal for a contract with the Arkansas Department of Finance and Administration was excepted from disclosure under the Arkansas Freedom of Information Act. Arkansas Dep't of Fin. & Admin. v. Pharmacy Assocs., 333 Ark. 451, 970 S.W.2d 217, 221 (1998). While the provision in that case is identical to section 552.104, the issue in the case was whether the state agency, not a private party, could claim the exception. See id. at 218 ("The question in this case is whether a state agency can claim the competitive-advantage exception under the Arkansas Freedom of Information Act ... on behalf of the person who supplied the information."). Further, the information requested was bid information submitted for purposes of obtaining a government contract. Id. at 220. The court noted that the contract is re-bid every two years and competitors could use the information to improve their competitive position. Id. That concern is not applicable in this case.
Boeing's assertion that the Port is prohibited from releasing information that falls within the scope of Section 552.104 is contrary to the plain reading of the statute as whole. Under the plain language of the PIA, section 552.104 is a discretionary exception, which may be waived by the governmental body unless disclosure is "prohibited by law" or the information is "confidential under law." In this case, there are no trial court findings that would support the conclusion that disclosure of the Lease information is "prohibited by law" or that the Lease information is "confidential under law," nor is there any evidence that would support such findings.
Accordingly, we hold that the trial court did not err in concluding that Boeing does not have standing to assert section 552.104 to prohibit the Port from disclosing the Lease information. We overrule Boeing's second issue on appeal. In light of this holding, we do not address Boeing's third issue, whether the Lease information falls within the scope of section 552.104. See Tex.R.App. P. 47.1 (courts of appeal must hand down opinions that are as brief as possible while addressing those issues necessary to final disposition of appeal).
Because the trial court did not err in concluding that the Lease information must be disclosed under section 552.022(a)(3), we affirm the trial court's judgment.
Concurring Opinion by Justice PEMBERTON.
BOB PEMBERTON, Justice, concurring.
For substantially the same reasons identified in its opinion, I agree with the majority that the evidence did not conclusively establish (as Boeing acknowledges it must in order for the company to prevail on appeal) that the information Boeing seeks to withhold is a trade secret. For similar reasons, but not those advanced by the majority, I likewise join in the judgment that Boeing is not entitled to have
Section 552.104 excepts from mandatory disclosure "information that, if released, would give advantage to a competitor or bidder." Id. § 552.104(a); see id. § 552.104(b) (providing that this exception applies notwithstanding section 552.022's general requirement that the so-called "core" public information listed within that section, including "information in [a] ... contract relating to the receipt or expenditure of public or other funds by a governmental body," be disclosed unless "expressly confidential under other law"). Boeing insists that release of the information at issue — rental rates, allocated shares of common maintenance costs, financial incentives, minimum insurance requirements, and liquidated damages provisions under its sublease with the Port
The majority, addressing a question of first impression, instead focuses on the district court's findings or conclusions that
The Attorney General maintains that Boeing lacks "standing" to invoke section 552.104 because that exception is intended to protect the purchasing interests of a governmental body when conducting competitive bidding or similar procurement processes, not those of a private party like Boeing that competes in such processes. If such a limitation exists, it cannot be found in the text of section 552.104. Section 552.104 is addressed simply to "information that, if released, would give advantage to a competitor or bidder" without elaborating as to whether it is intended to protect the interests of "competitors" and "bidders," a governmental body whose contract or business is being sought by "competitors" or "bidders," or both. See id. § 552.104. On its face, section 552.104 would seem to implicate the interests of both. In fact, the Attorney General has tacitly acknowledged as much in his own prior open records decisions. While opining on numerous occasions that section 552.104 protects the purchasing interests of governmental bodies,
That section 552.104 serves in part to protect the interests of private "competitors" and "bidders," and may be raised by them, is further confirmed by other PIA provisions. Under PIA subchapter G, a governmental body must generally assert and present argument to the Attorney General concerning any potentially applicable subchapter C exception in order to preserve that ground for withholding information. See id. §§ 552.301-.303 (West 2004 & Supp. 2011). Compliance with these administrative procedural requirements, moreover, is ordinarily a prerequisite to a governmental body's right to challenge the Attorney General's determination regarding that exception through the suit authorized by PIA sections 552.324 and .325. See id. § 552.324-.326 (West 2004 & Supp. 2011). However, under PIA section 552.305, the Legislature has provided that "[i]n a case in which information is requested under this chapter and a person's privacy or property
Pivotal to this case, in section 552.305, the Legislature enumerated several examples of "a case in which information is requested under this chapter and a person's privacy or property interests may be involved," so as to be subject to these exceptions and special procedures. These examples "include a case under Section 552.101, 552.104, 552.110, or 552.114." Id. § 552.305(a) (emphasis added).
These features of the PIA reflect legislative recognition that disclosure of information protected by section 552.104 would implicate the interests of the third parties whose "competitors" or rival "bidders" would be "advantaged," even to the extent that those third parties would or should be the primary advocates of the exception's applicability before the Attorney General. Furthermore, the Legislature has provided such third parties a remedy if the Attorney General makes an erroneous adverse decision on that issue. As the Attorney General seems to acknowledge, PIA section 552.325, on which Boeing relies, waives sovereign immunity to permit not only governmental bodies, but also private parties, to sue the Attorney General to challenge his administrative determinations regarding the applicability of subchapter C exceptions and whether requested information must be disclosed. See id. § 552.325 (West Supp. 2011) ("A governmental body, officer for public information, or other person or entity that files a suit seeking to withhold information from a requestor ....") (emphasis added); see also id. § 552.353(c) (West Supp. 2011) (referencing a "person or entity" filing "a cause of action seeking relief from compliance with the decision of the attorney general, as provided by Section 552.325"); Attorney General of Texas, Public Information 2012 Handbook 60 (observing that section 552.325 "recognizes the legal interests of third parties and their right to sue the attorney general to challenge a ruling that information must be released"). Considering this statutory scheme, I would hold that the Legislature intended private parties whose "competitors" or rival "bidders" would be "advantaged" by disclosure to have standing or the right to protect their interest in the information protected by section 552.104 through the judicial remedy provided in section 552.325.
In contending otherwise, the Attorney General insists that we must or should defer to numerous prior open records decisions and letter rulings stating that section 552.104 protects governmental bodies' purchasing interests rather than the interests of private parties. Like the majority, I
Many of these determinations merely state a conclusion without analysis beyond citing earlier determinations that say the same thing — again, without analysis.
As the Attorney General and majority emphasize, a governmental body may choose to disclose its information voluntarily so long as the disclosure is not "expressly prohibited by law or the information is confidential under law." See Tex. Gov't Code Ann. § 552.007 (West 2004); see also id. § 552.353 (West Supp. 2011) (criminalizing distribution of information considered "confidential" under PIA). They further assert, and I agree, that section 552.104 is merely an exception to required disclosure under the PIA and does not, standing alone, make information "confidential" or otherwise prohibit voluntary disclosure of the information by a governmental body. See id. § 552.104; Texas Comptroller of Pub. Accounts v. Attorney Gen. of Tex., 354 S.W.3d 336, 359 (Tex.2010) (Wainwright, J., dissenting) (suggesting that section 552.104 information would be among that which a governmental body could voluntarily disclose). But the Port did not voluntarily disclose the information to the requestor here, and the majority is mistaken to the extent it suggests that any action or inaction by the Port in asserting section 552.104 before the Attorney General had equivalent legal effect. As previously explained, the Legislature has exempted 552.104 cases from the requirement that governmental bodies first raise exceptions before the Attorney General in order to subsequently raise them in court. Id. § 552.326; see id. § 552.305(a). Second, and more importantly, private parties suing the Attorney General under section 552.325 are not subject to the exhaustion-of-remedies requirements applicable to governmental bodies. See Morales v. Ellen, 840 S.W.2d 519, 523 (Tex.App.-El Paso 1992, writ denied).
With these qualifications, I join in the majority's judgment affirming the district court.
The district court's judgment withheld certain other portions of the sublease agreement pursuant to homeland security and anti-terrorism protections. See 6 U.S.C.A. § 133 (West 2007) (providing that critical infrastructure information provided to state or local government agencies shall not be made available pursuant to state or local laws requiring disclosure of information or records and may only be disclosed with the written consent of the person or entity submitting the information); Tex. Gov't Code Ann. § 418.181 (West 2005) ("Those documents or portions of documents in the possession of a governmental entity are confidential if they identify the technical details of particular vulnerabilities of critical infrastructure to an act of terrorism."). Those portions of the sublease are not at issue on appeal.