ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 5, 2014

Attorney ·.. d Public Information Coordinator
Office of the General Counsel
The Universf of Texas System
201 West Sevel). Street
1-2902
I.

OR2014-2203 l
Dear Ms. Welter:
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# 545761 (U.T. OGC# 158472).
The University of Texas at Austin (the "university") received a request for copies of the
contracts between twenty-three named corporate sponsors and the university's athletic
department, including any contracts negotiated by IMG College, L.L.C. ("IMG"). You state
the university will release some of the requested information to the requester. You contend
some of the submitted information may be subject to copyright law. Additionally, you state
the release of the remaining requested information may implicate the interests of third
parties. Accordingly, you state, and provide documentation demonstrating, the university
riotified the third parties of the request for information and of their right to submit arguments
stating why their information should not be released. 1 See Gov't Code§ 552.305 (permitting

'The third parties notified pursuant to section 552.305 are the following: American Campus
Communities Operating Partnership L.P.; AT&T Services, Inc. ("AT&T'); Chevrolet Motor Division, General
Motors L.L.C.; Clear Channel Communications, Inc.Austin; The Coca-Cola Company; Cytosport, Inc.; Pon
Material Handling North America d/b/a Equipment Depot; HEB Grocery Company, L.P. ("HEB"); !MG;
Mi!lerCoors, L.L.C. ("MilleiCoors"); Restaurant Management Company (Pizza Hut); RICOH; SiriusXM
Satellite Radio, Inc.; Southwest Airlines Co. ("Southwest"); St. David's Healthcare Partership, L.P., LLP; TI1e
Gatorade Company; Stubhub, Inc. ("StubHub"); The Hershey Company ("Hershey's"); University Federal
Credit Union; and UPS.

!'OST OFFICE

Box 12548,

AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WWW.TEXASATTORNEYGENERAL. GOV
An Ef#AI J;"mp/01"''"' OpponunitJ Empl11yrr • Printttl on Rrq,/rtl P11.prr

 Ms. Audra G. Welter - Page 2

interested third party to submit to attorney general reasons why requested information should
not be released); Open Records Decision No. 542 ( 1990) (determining statutory predecessor
to section 552.305 permits governmental body to rely on interested third party to raise and
explain applicability of exception in certain circumstances). We have reviewed the
submitted information and the arguments submitted by AT&T, HEB, Hershey's, IMG,
MillerCoors, Southwest, and StubHub. 2 We have also received and considered comments
submitted by a representative of the requestor. See Gov't Code§ 552.304 (providing that
interested party may submit written comments regarding why information should or should
not be released).
Initially, the third parties who submitted comments contend the requested information is not
subject to disclosure under the Act. The Act is applicable only to "public information." See
id. §§ 552.002, 552.021. Section 552.002(a) defines "public information" as the following:
[I]nformation that is written, produced, collected, assembled, or maintained
under a law or ordinance or in connection with the transaction of official
business:
(1) by a governmental body;
(2) for a governmental body and the governmental body:
(A) owns the information;
(B) has a right of access to the information; or
(C) spends or contributes public money for the purpose of
writing, producing, collecting, assembling, or maintaining the
information; or
(3) 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.

2

We note the university failed to comply with the procedural requirements of section 552.30l(e) of
the Government Code in requesting a decision from this office. See Gov't Code § 552.30l(e) (requiring
governmental body to submit within fifteen business days of receiving request for information comments
explaining applicability of raised exceptions, copy of request for information, signed statement of date
governmental body received request or evidence sufficient to· establish date, and copy of information
governmental body seeks to withhold or representative samples). Nonetheless, third party interests can provide
a compelling reason to overcome the presumption of openness caused by failure to comply with
section 552.301. See id. § 552.302; Open Records Decision No. 150 at2 (l 977). Because third party interests
are at stake in this instance, we will consider the arguments against disclosure of the information at issue,
notwithstanding the university's violation of section 552.301 in requesting this decision.

 Ms. Audra G. Welter- Page 3

Id. § 552.002(a). Section 552.002(a-1) also provides the following:
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
govenunental function on behalf of a goverrunental body, and pertains to
official business of the governmental body.

Id.§ 552.002(a-l). Thus, information that is collected, assembled, or maintained by a third
party may be subject to disclosure under the Act if a governmental body owns or has a right
of access to the information. See Open Records Decision No. 462 (1987); cf Open Records
Decision No. 499 ( 1988). The third parties who submitted comments assert the submitted
information is not subject to the Act because it was generated by the third parties, which are
not governmental bodies subject to the Act, and it consists of agreements between private
parties that do not involve the university. See Gov't Code § 552.003(1)(A) (defining
"governmental body"). We note, however, the submitted agreements relate to the university's
athlelic program and sponsorship of the university. IMG informs us the university approves
the sponsors and the sponsorship components, and IMG enters into sponsorship agreements
with the sponsors. We further note the submitted information is in the possession of the
university. Moreover, the university has submitted this information as being subject to the
Act. Thus, we find the university collected, assembled, or maintains this information in
connection with the transaction of its official business. We therefore conclude the submitted
information is subject to the Act and must be released, unless it is demonstrated
that the information falls within an exception to disclosure under the Act. See id
§§ 552.006, .021, .301, .302.
Next, we note an interested third party is allowed ten business days after the date of its
receipt of the governmental body's notice under section 552.305( d) of the Government Code
to submit its reasons, if any, as to why requested information relating to it should be withheld
from disclosure. See id. § 552.305(d)(2)(B). As of the date of this letter, this office has
received comments from only AT&T, HEB, Hershey's, IMG, MillerCoors, Southwest, and
StubHub, and has not received comments from the remaining third parties explaining why
their information should not be released to the requestor. Thus, we have no basis to conclude
the release of the submitted information would implicate the interests of the remaining third
parties, and none of the submitted information may be withheld on that basis. See id.
§ 552.110; Open Records Decision Nos. 661 at 5-6 (1999) (to prevent disciosure of
commercial or financial information, party must show by specific factual evidence, not
conclusory or generalized allegations, that release of requested information would cause that
party substantial competitive harm), 552 at 5 (1990) (party must establish primafacie case
that information is trade secret), 542 at 3.

 Ms. Audra G. Welter - Page 4

Hershey's seeks to withhold certain information the university did not submit for our review.
Because such information was not submitted by the governmental body, this ruling does not
address that information and is. limited to the information submitted as responsive by the
university. See Gov'tCode § 552.301(e)(l)(D) (governmental body requesting decision from
Attorney General must submit copy of specific information requested).
HEB and Southwest assert their submitted contracts are excepted from disclosure because
they are subject to confidentiality clauses. We note information is not confidential under the
Act simply because the party submitting the information anticipates or requests that it be kept
confidential. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 677
(Tex. 197 6). In other words, a governmental body cannot, through an agreement or contract,
ovem1le or repeal provisions of the Act. See Attorney General Opinion JM-672 (1987);
Open Records Decision Nos. 541 at 3 (1990) ("[T]he obligations of a governmental body
under [the Act] cannot be compromised simply by its decision to enter into a contract."), 203
at 1 (1978) (mere expectation of confidentiality by person supplying information does not
satisfy requirements of statutory predecessor to section 552.110). Consequently, unless the
contracts fall within an exception to disclosure, they must be released, notwithstanding any
expectations or agreements specifying otherwise.
AT&T, HEB, Hershey's, IMG, MillerCoors, Southwest, and Stub Hub all submit arguments ·
against disclosure of their information under section 552.110 of the Government Code.
Section 552.110 protects (1) trade secrets and (2) cominercial or financial information, the
disclosure of which would cause substantial competitive harm to the person from whom the
information was obtained. Gov't Code § 552.110. Section 552.llO(a) protects the
proprietary interests of private parties by excepting from disclosure information that is trade
secrets obtained from a person and information that is privileged or confidential by statute
or judicial decision. Id. § 552.11 O(a). The Texas Supreme Court has adopted the definition
ofa "trade secret" from section 757 oftheRestatementofTorts. Hyde Corp. v. Huffines, 314
S.W.2d 763, 776 (Tex. 1958); see also ORD at 2. Section 757 provides a trade secret to be
as follows:
[A ]ny formula, pattern, device or compilation of information which is used
in one's business, and which gives [one] an opportunity to obtain an
advantage over competitors who do not know or use it. It may be a formula
for a chemical compound, a process of manufacturing, treating or preserving
materials, a pattern for a machine or other device, or a list of customers. It
differs from other secret information in a business ... in that it is not simply
information as to single or ephemeral events in the conduct of the business,
as, for example, the amount or other terms of a secret bid for a contract or the
salary of certain employees . . . . A trade secret is a process or device for
continuous use in the operation of the business. Generally it relates to the
production of goods, as, for example, a machine or formula for the
production of an article. It may, however, relate to the sale of goods or to

 Ms. Audra G. Welter- Page 5

other operations in the business, such as a code for determining discounts,
rebates or other concessions in a price list or catalogue, or a list of specialized
customers, or a method of bookkeeping or other office management.
757 cmt. b (1939) (citation omitted); see also Huffines, 314
S. W .2d at 776. In determining whether particular information constitutes a trade secret, this
office considers the Restatement's defmition of trade secret, as well as the Restatement's list
of six trade secret factors. 3 See RESTATEMENT OF TORTS§ 757 cmt. b. This office must
accept a claim that information subject to the Act is excepted as a trade secret if aprimafacie
case for exemption is made and no argument is submitted that rebuts the claim as a matter
oflaw. ORD 552 at 5-6. However, we cannot conclude that section 552.1 lO(a) is applicable
unless it has been shown that the information meets the definition of a trade secret and the
neeessary factors have been demonstrated to establish a trade secret claim. Open Records
Decision No. 402 (1983).
RESTATEMENT OF TORTS§

Section 552. 1 lO(b) protects "[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[.]" Gov't Code
§ 5 52.11 O(b ). This exception to disclosure requires a specific factual or evidentiary showing,
not conclusory or generalized allegations, that substantial competitive injury would likely
result from release ofthe information at issue. Id.; ORD 661 at 5-6 (business enterprise must
show by specific factual evidence that release of information would cause it substantial
competitive harm).
AT&T, HEB, Hershey's, IMG, MillerCoors, Southwest, and StubHub each contend portions
of their information are commercial or financial information, release of which would cause
substantial competitive harm to the companies. Upon review of these arguments, we
conclude AT&T, HEB, Hershey's, IMG, MillerCoors, Southwest, and StubHub have
established the release of some of the information at issue would cause the companies
substantial competitive injury. Accordingly, the university must withhold the information

1

There are six factors the Restatement gives as indicia of whether information qualifies as a trade

secret:
{I)
(2)
(3)
(4)
(5)
(6)

the extent to which_ the information is known outside of [the company's] business;
the extent to which it is known by employees and others involved in [the company's] business;
the extent of measures taken by [the company] to guard the secrecy of the information;
the value of the information to [the company] and to [its] competitors;
the amount of effort or money expended by [the company] in developing the information; and
the ease or difficulty with which the information could be properly acquired or duplicated by

others.
RESTATEMENT OF TORTS§ 757 cmt. b; see also Open Records Decision Nos. 319 at 2 (1982), 306 at 2
(1982), 255 at 2 (1980).

 Ms. Audra G. Welter- Page 6

we have marked and indicated under section 552.l lO(b). 4 However, we find AT&T, HEB,
Hershey's, IMG, MillerCoors, Southwest, and StubHub have not made the specific factual
or evidentiary showing required by section 552 .11 O(b) that release of any of their remaining
information would cause the companies substantial competitive harm. See Open Records
Decision Nos. 509 at 5 (1988) (because bid specifications and circumstances would change
for future contracts, assertion that release of bid proposal might give competitor unfair
advantage on future contracts is too speculative), 319 at 3 (statutory predecessor to
section 552.110 generally not applicable to information relating to organization and
personnel, market studies, professional references, qualifications and experience, and
pricing). We therefore conclude the university may not withhold the remaining information
at issue under section 552.1 lO(b).
AT&T, Hershey' s, IMG, MillerCoors, Southwest, and StubHub claim their remaining
information at issue constitutes trade secrets. We note pricing information pertaining to a
particular proposal or contract is generally not a trade secret because it is "simply
information as to single or ephemeral events in the conduct of the business," rather than "a
process or device for continuous use in the operation of the business." RESTATEMENT OF
TORTS§ 757 cmt. b; see also Huffines, 314 S.W.2d at 776. Upon review, we find AT&T,
Hershey's, IMG, MillerCoors, Southwest, and StubHub have failed to demonstrate the
remaining information at issue meets the definition of a trade secret, nor have they
demonstrated the necessary factors to establish a trade secret claim for this information.
Accordingly, the university may not withhold the remaining information at issue tmder
section 552. 11 O(a).
The university contends, and we agree, some of the remaining information appears to be
subject to copyright law. A custodian of public records must comply with the copyright law
and is not required to furnish copies of recoi:ds that are copyrighted. Open Records Decision
No. 180 at 3 (1977). A governmental body must allow inspection of copyrighted materials
unless an exception applies to the information. Id; see Open Records Decision No. 109
(1975). If a member of the public wishes to make copies of copyrighted materials, the person
must do so unassisted by the governmental body. In making copies, the member of the
public assumes the duty of compliance with the copyright law and the risk of a copyright
infringement suit.
In summary, the university must withhold the information we have marked and indicated
under section 5 52.11 O(b) of the Government Code. The university must release the
remaining information; however, any information protected by copyright may only be
released in accordance with copyright law.

4

As our ruling is dispositive, we need not address the remaining arguments of AT&T, Hershey's, IMG,
MillerCoors, Southwest, and StubHub against disclosure of this information.

 Ms. Audra G. Welter - Page 7

This letter ruling is limited to the particular information 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 information or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and of the requestor. For more information concerning those rights
and responsibilities, please visit our website at http://www.texasattomeygeneral.gov/open/
orl ruling info.shtml, or call the Office of the Attorney General's Open Government
Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for
providing public information under the Act may be directed to the Office of the Attorney
General, toll free, at (888) 672-6787.

69~~?-HalLindsay E. Hale

Assistant Attorney GWral
Open Records Division

LEH/akg
Ref:

ID# 545761

Enc.

Submitted documents

c:

Requestor
(w/o enclosures)
Ms. Emily M. Mooring
Associate General Counsel
IMG College, L.L.C.
546 East Main Street
Lexington, Kentucky 40508
(w/o enclosures)
Ms. Kimberly Kelley
Vice President, Property Marketing
American Campus Communities Operating Partnership L.P.
12700 Hill Country Boulevard, Suite T-200
Austin, Texas 78738
(w/o enclosures)

 Ms. Audra G. Welter- Page 8

Mr. Joseph E. Cosgrove, Jr.
General Counsel
AT&T Services, Inc.
816 Congress Avenue, Suite 1100
Austin, Texas 78701
(w/o enclosures)
Mr. Mike Weidman
National Programs Manager
Chevrolet Motor Division, General Motors L.L.C.
Mail Code 482-A29-D46
100 Renaissance Center
Detroit, Michigan 48265-1000
(w/o enclosures)
Ms. Pam McKay
President
Clear Channel Communications, Inc. Austin
KVET AM Radio
3601 South Congress Avenue, Building F
Austin, Texas 78704
(w/o enclosures)
Mr. Larry Alberts
Director, Chain Sales
The Coca-Cola Company
14185 Dallas Parkway, Suite 900
Dallas, Texas 75254
(w/o enclosures)
Mr. Chris Kildow
Director, Sports Marketing
Cytosport, Inc.
4795 Industrial Way
Benicia, California 94510
(w/o enclosures)
Mr. Bryan Monk
Vice President
Pon Material Handling North America d/b/a Equipment Depot
700 West Calvacade Street
Houston, Texas 77009
(w/o enclosures)

 Ms. Audra G. Welter- Page 9

Ms. Suzanne Schorlemer Bailey
Managing Counsel
HEB Grocery Company, L.P.
646 South Main Avenue
San Antonio, Texas 78204
(w/o enclosures)
Ms. Renee Sotos
Assistant General Counsel
MillerCoors, L.L.C.
250 South Wacker Drive, Suite 800
Chicago, Illinois 60606-5888
(w/o enclosures)
Mr. Lynda Carrier-Metz
Director, Marketing
Restaurant Management Company (Pizza Hut)
7700 East Polo Drive
Wichita, Kansas 67206
(w/o enclosures)
Mr. Karl Lamb
Marketplace Vice President
RICOH
9440 Research Boulevard, Building 4, Suite 300
Austin, Texas 78759
(w/o enclosures)
Mr. Mike Harmon
Senior Director, Sports Marketing
SiriusXM Satellite Radio, Inc.
1221 Avenue of the Americas, 191h Floor
New York, New York 10020
(w/o enclosures)

Mr. Christopher Hodge
Counsel for Sout.1.west Airlines Co.
Carrington, Coleman, Sloman & Blumenthal, L.L.P.
901 Main Street, Suite 5500
Dallas, Texas 75202
(w/o enclosures)

 Ms. Audra G. Welter - Page 10

Ms. Denise Bradley
Director of Corporate Communications
St. David's Healthcare Partership, Llp
1151 Enterprise Drive #100
Coppell, Texas 75019
(w/o enclosures)
Mr. Kyle Grote
Sports Marketing Manager
The Gatorade Company
555 West Monroe Street 10-2
Chicago, Illinois 60661
(w/o enclosures)
Mr. Aaron Johnson
For Stubhub, Inc.
eBay Inc.
2145 Hamilton Avenue
San Jose, California 95125
(w/o enclosures)
Ms. Melissa S. Sellers
Counsel US Commercial
The Hershey Company
100 Crystal A Drive
Hershey, Pennsylvania 17033
(w/o enclosures)
Mr. J. W. Cannon
Senior Project Lead, Sponsorships and Events
UPS
55 Glenlake Parkway Northeast, Jh Floor
Atlanta, Georgia 30328
(w/o enclosures)