The Texas Public Information Act (TPIA) allows competitors, customers, clients, and concerned citizens to request the production of information provided by private companies to Texas agencies or other governmental bodies. When a governmental body receives a request for information that implicates the rights of a third party, that party will be provided notice of the request, and the opportunity to object.
Companies seeking to prevent the disclosure of confidential and proprietary trade secrets or other competitively sensitive information must act quickly by filing an objection with the Texas Attorney General’s Office in order to preserve and protect such information from public disclosure. If you have received a third-party notice of a Texas Public Information Act request, we can help. Our TPIA attorneys have extensive experience responding to these requests. Click here for the basics of Responding to Texas Public Information Act requests.
Cobb & Counsel frequently objects to the disclosure of information under the Texas Public Information Act, most often objecting to the disclosure of its client’s trade secrets and other confidential information. We have significant experience preventing the disclosure of such competitively sensitive information, having obtained numerous positive Attorney General Letter Rulings protecting our client’s interests. Our attorneys also have significant experience appealing adverse Attorney General Letter Rulings to district court, while continuing to prevent the disclosure of the requested information. Because we regularly respond and object to public information act requests, we can efficiently and cost-effectively serve companies seeking to protect their confidential information from disclosure.
You Have Only 10 Days to Object to the Disclosure of Confidential Information
If you have received a third party notice of a Texas Public Information Act request from a Texas governmental body, you have likely been provided with the following warning:
You are not required to submit arguments to the attorney general, but if you decide not to submit arguments, the Office of the Attorney General will presume that you have no interest in withholding your records from disclosure. In other words, if you fail to take timely action, the attorney general will more than likely rule that your records must be disclosed to the public. If you decide to submit arguments, you must do so not later than the tenth business day after the date you receive this notice.
Because of the statutorily imposed deadlines in the Texas Public Information Act, a third-party must object to the disclosure of its information in a very short time. While parties seeking to object to the disclosure of their information should hew to the 10-day deadline, parties may have the opportunity to present their arguments to the Attorney General after the expiration of the 10-day objection period provided certain precautions are taken. If you have received a third-party notice of a public information act request, and wish to object to the disclosure of your confidential information, even if the 10-day deadline has expired, we urge you to contact Cobb & Counsel’s TPIA attorneys immediately in an effort to preserve your rights.
Information That “Would Give Advantage to a Competitor” Can Be Protected from Disclosure
Historically, companies protected competitively sensitive information from disclosure by arguing that information constituted a “trade secret” or “commercial 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.” With the Texas Supreme Court’s ruling in Boeing Company v. Paxton, companies have a new weapon – or shield – against disclosure of competitively sensitive information: the “competition or bidding” exception, which protects “information that, if released, would give advantage to a competitor or bidder” from disclosure. Tex. Gov’t Code § 552.104(a). The Texas Supreme Court articulated, the standard for exemption is whether a competitor knowing the information “would be an advantage, not whether it would be a decisive advantage.” Significantly, the Texas Supreme Court did not limit the “competition or bidding” exception’s application to an ongoing bidding process, or indeed, to a bidding process at all, but granted private parties the right to claim the exception whenever the release of the information would give an advantage to a competitor, regardless of the context.
Protect your company from potentially harmful public information requests with Cobb & Counsel
Private parties seeking to protect information provided to State agencies and governmental bodies have always been able to invoke the “trade secret” and “commercial or financial information” exceptions of Section 552.110, which require a demonstration that a party’s information was “secret” and valuable, or would cause “substantial competitive harm.” Now, private parties simply need to demonstrate that disclosure of their information would provide a competitor “some advantage,” which presupposes competitive harm. Parties seeking to prevent disclosure must still articulate the appropriate legal standards and comply with substantive and procedural technicalities regarding proof of harm, so it is important to consult an attorney when objecting to Texas Public Information Act requests.
If you have received a third party notice, contact a trusted Texas Public Information Act attorney at Cobb & Counsel right now. Call 512-693-7570
In The News: Attorney Bill Cobb Quoted on Texas Public Information Act Developments
- Editorial: Texas court ruling lets government keep contracts secret, inviting corruption to fester, The Dallas Morning News
- Texas high court carves ‘monstrous loophole’ for government secrets, The Texas Tribune
- Texas withholds details of $2.5M voter ID education effort, Houston Chronicle
- Texas Supreme Court ruling bars public release of certain company records, Houston Chronicle