Under the Texas Public Information Act, a consumer, a competitor, or any other member of the general public may seek information from governmental entities, which could affect the interests of private businesses. For example, some information filed by businesses with governmental agencies may have trade secret or other competitive, non-public information that warrants protection from disclosure under the Public Information Act. But, if a company does not protect its interests, the governmental body will disclose this information. Therefore, if your company receives notice of a public information request, it should promptly seek counsel to analyze the request and respond accordingly.
Specifically, under Section 522 of the Texas Government Code, a person may seek information from a governmental agency by submitting a request in writing. When a public information request seeks more than pure government information that may affect the rights and interests of a third party, the governmental body may seek an Attorney General decision on release of the information and should notify the third party of the request for a decision. Once the third party has received notice of the request under the Public Information Act and the request for an Attorney General decision, the third party may submit a brief or other memorandum to the Attorney General within 10 business days, providing reasons why the requested information should not be released.
There are many exceptions under the Public Information Act that prohibit the release of information. Most applicable to businesses, however, will be where certain information is protected as confidential by law, Tex. Gov’t Code § 522.101, where the information requested necessarily seeks trade secrets or “[c]ommercial 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.” Tex. Gov’t Code 522.110, or where information “if released, would give advantage to a competitor or bidder.” Tex. Gov’t Code 522.104. Therefore, upon receiving a notice for a public information request, there are ways to protect you and your business, depending on the circumstances, but it requires quick action.
After the third party submits its briefing to the Attorney General, the Attorney General generally has 45 days to issue a decision. Then, if the Attorney General requires that documents be disclosed and such a ruling violates the provisions of the Public Information Act, the provisions of the Act may be enforced through a civil lawsuit.
Public Information Act requests that implicate trade secrets or other confidential information are high-stakes issues. Release of some corporate information can be detrimental to a company, particularly where it has invested significant capital in creating the trade secret or other confidential information. Because of these high stakes and quick response times, it is imperative to contact experienced counsel immediately upon receiving notice of a Public Information Act request that can harm your business.