openmeetings/open records: what you can and can't do as a mou

1

Open Meetings Open Records What you can and can’t do

as an MOU

TPPA LEGAL SEMINARTPPA LEGAL SEMINAR

OCTOBER 3-4, 2002OCTOBER 3-4, 2002

BOB KAHNBOB KAHN

2

Senate Bill 7 Background

With deregulation of the electric utility industry, the legislature recognized that municipally owned utilities (MOUs) required an additional degree of flexibility under the Texas Public Information Act and Open Meetings Act.

SB 7 was passed, adding Government Code

Section 552.131 (now 552.133) and Section 551.086.

Exceptions to the requirements of the Open Meetings Act and Texas Public Information Act allowing MOUs to protect deliberations or information related to “competitive matters”.

3

Section 551.086 – Open Meetings

The legislature authorized a MOU governing body or board of trustees to deliberate, vote/take action on any competitive matter in closed meeting.

A “competitive matter” is one that: is determined in good faith;by majority vote of the governing body;to be related to the utility’s competitive activity; and would advantage competitors or prospective

competitors, if disclosed.

4


“Competitive matter” may not include information relating to:

Provision of distribution access service; provision of transmission service; distribution system regarding reliability and continuity, to

extent not security sensitive; substantive rule of general applicability; aggregate receipts or expenditures; equal employment opportunity; performance in contracting with minority business entities;

5


“Competitive matter” may not include cont’d: nuclear decommissioning trust agreements; amount & timing of transfers to owning city fund; environmental compliance under state, federal or local law

subject to confidentiality provided for under law; names of public officers of utility and voting records on

matters other than those w/in scope of competitive resolution; description of utility’s central and field organization, where

public may obtain and submit information and request decisions; and

general course and method by which utility functions are channeled and determined, formal and informal policies and procedures.

6


Allows closed meetings to discuss competitive matter whether or not the MOU has adopted customer choice or serves in a multiply certificated service area—applies to prospective competitors.

Notice for closed meetings may be general.

Good faith determination and vote deeming item as a competitive matter are conducted in closed meeting.

7


Without majority vote, no further action may be taken in closed meeting.

8

Texas Public Information Act – Open Records

The Texas Public Information Act (“TPIA”, previously known as the Open Records Act) was adopted in 1973. Texas Government Code Sections 552.001 et seq.

Sections 552.021 and 552.022 (“Super Disclosure Provision”) give the public the right to request access to any information that is submitted to, or created by, the government or any governmental entity, unless it is expressly confidential under other law

9

Open Records Exceptions

BUT information can be excepted from disclosure under various exceptions defined in the TPIA.

Exceptions include the following:Section 552.101 – Confidential InformationSection 552.103 – Litigation or Settlement

NegotiationsAND Section 552.133 – Competitive Matters

10

Open Records Exceptions

Places the burden on the governmental body (or affected third party) of proving that an exception applies and seeking an Attorney General determination within 10 working days.

11

Open Records Exception - Section 552.133

Section 552.133 excepts from public disclosure, Public Power Utility Competitive Matters.

Like the Open Meetings Act, Section 552.133 defines a “competitive matter” as a “utility-related matter” that:

is determined in good faith; by a majority vote of the governing body; to be related to the utility’s competitive activity; and would advantage competitors or prospective competitors,

if disclosed.

12


Like the Open Meetings Act, excludes from the definition of “competitive matter” the same 13 categories of information.

Like the Open Meetings Act, applies whether or not the MOU has adopted customer choice or serves in a multiply certificated service area.

13


Attorney General may conclude that Section 552.133 is inapplicable to requested information only if:

based on the information provided, the attorney general determines the public power utility governing body has not acted in good faith in determining that the issue, matter, or activity is a competitive matter; OR

that the information requested is not reasonably related to a competitive matter. Section 552.133(c); OR2002-3857.

Asserting “competitive matters” exceptions does not limit right to assert other exceptions, such as Section 552.101, Confidential by Law.

14


Super Disclosure Provision conflicted with the Open Records amendments included in SB-7.

The TPIA was amended in the last legislative session (SB1458) to ensure that public power competitive matters can be protected from disclosure.

15

Competitive Matters – Use of Resolutions

A resolution adopted by the governing body is an effective mechanism for complying with the TPIA and competitive matters exception because it:

Allows governing body to evaluate and make a deliberative decision regarding categories of information that are truly competitive matters and should be confidential.

Provides MOU with a deliberative document that can be referred to in identifying “competitive matters” without the need for case by case determinations by council on an emergency basis.

16


Allows governmental body to identify information that warrants protection in a manner that is

• CONSISTENT,• TIMELY, and• EFFECTIVE.

17


At least 11 cities and 1 river authority have passed resolutions related to “competitive matters”.

Austin Boerne Brownsville Bryan Denton Greenville Garland Kerrville LCRA Lubbock New Braunfels San Antonio

18

Determinations under Competitive Matters Exception

The Attorney General has made the following determinations under the “competitive matters” exception:

OR2002-3307 - The provisions of Section 552.133 apply only to electric or gas utility services; information related to cable and internet operation is not considered “a utility-related matter” under the exception.

OR2002-4729 – City ordinance establishing rate for gas service provided by utility is a public record and may not be withheld under the “competitive matters” exception.

19


Attorney General determination regarding “competitive matters” exception cont’d.

OR Ltr. 2001-5582 – Customers’ names, current addresses, former addresses, forwarding addresses, work addresses, telephone number, dates of birth, social security numbers, driver’s license numbers, spouse information, roommate information, employer information, dates of service, electric bills, billing history, and information on whether an individual is a subscriber, whether an individual’s services is active, and customer information from the “CIS Non-confidential Update List” is excepted from disclosures under Section 552.133.

OR2002-2704 – Information regarding utility customers, including names, addresses, premise numbers, and account status is excepted from disclosure under Section 552.133 as a previous determination under OR Ltr. 2001-5582.

20


OR2002-3857 –Selected information in third party meter services agreement related to customer information system data base, equipment pricing, cost of wireless service, minimum performance standards, and liquidated damages and buyout clauses are reasonably related to several competitive matters in accordance with city’s resolution and therefore excepted under Section 552.133.

21

Important Considerations

See Section 552.301 – Request for Attorney General Opinion.

Conclusory assertions that an exception is applicable or a simple reference to your resolution are not adequate.

Identify the relevant documents, determine and cite to the relevant statutory exceptions, including “competitive matters,” and provide the necessary factual support or rationale. Section 552.301(e).

22


Attach a copy of written request and state the date on which it was received. Section 552.301(e).

Attach a copy of specific information requested, or submit representative samples, if voluminous. Section 552.301(e).

Label the copy of specific information or representative sample to indicate which exceptions apply to specific information. Section 552.301(e).

23


Under Section 552.301(a), the requestor may be informed that information is being withheld based on a previous determination of the Attorney General. See ORD No. 673 (2001) for discussion of “previous determination”.

24


If the Attorney General rules that an exception applies, the governmental body need not release the information.

If a governmental body improperly fails to release information, the Act authorizes the requestor or the OAG to file a civil lawsuit to compel release.

25


Comply with the Attorney General’s ruling on whether an exception applies, or ensure that you file a suit against the ruling within 30 days under Section 552.324(b) -- or within 10 days to get the full benefit of appeal (Section 552.353(b)(3) and (c)).

Be judicious when implementing resolutions and claiming “competitive matters” exceptions.

26


Do not attempt to contact attorneys in the Attorney General’s Open Record’s Division directly. See Hotline Number under Resources.

27

Resources

Attorney General’s Public Information Handbook is available online at the Office of the Attorney General’s web site at www.oag.state.tx.us. The web also provides access to the following:

Attorney General Opinions dating from 1939 through the present;

All formal Open Records Decisions (ORDs); andAll Informal Open Records letter rulings (Ors)

issued since January 1999.

http://www.oag.state.tx.us/

28

Resources

Hard copies of the Attorney General publications and opinions can be obtained through the Support Services Division’s Opinion Library by calling (512) 936-1730 or faxing (512) 462-0548.

Open Government Hotline (877) 673-6859.In Austin 478-6736.

29

Resources

Sample letters – See attached.To request Attorney General determination

under the “competitive matters” exception of the Texas Public Information Act.

To inform a requestor of a prior determination by the Attorney General.

30

SAMPLE LETTERREQUESTING AG DETERMINATION

“COMPETITIVE MATTERS”/RESOLUTION May 1, 2002

FACSIMILE 476-7644AND FIRST CLASS MAIL

Honorable John CornynAttorney General of TexasSupreme Court BuildingP.O. Box 12548Austin, Texas 78711‑2548 Re: Three Open Records Requests received April 18, 2002 Dear Attorney General Cornyn, The City of Austin received three requests for information from Attorney Steven A. Fleckman on April

18, 2002. This letter is a request for a determination under section 552.301 of the Government Code that the requested information is excepted from required public release by Sections 552.101, 552.104, 552.110, and 552.133 of the Government Code.

By copy of this letter the City is notifying the requestor that the City wishes to withhold the requested

information and has asked for a decision from the Attorney General about whether the information is within an exception to public disclosure.

The requestor seeks information regarding Austin Energy customers, including

names, addresses, premise numbers, and account status, such as active or inactive. Copies of the requests are attached.

Section 552.101 excepts from disclosure confidential information. Section 552.104 excepts from

disclosure information that would give advantage to a competitor. Section 552.110 excepts commercial and financial information, the release of which would cause substantial competitive harm. And finally, Section 552.133 excepts from disclosure information of a public power utility that would give advantage to competitors or potential competitors if released. The competitive position of a governmental body is subject to the protection of these sections when the government may be deemed a "competitor" in the marketplace because it is authorized by law to engage in competition.

Austin Energy is the City of Austin’s municipally-owned electric utility. In the past,

Austin Energy has received several requests for customer information that were submitted to you for a

decision on whether to disclose the information. Austin Energy successfully argued that, as a provider of a variety of products and services related to electric service, Austin Energy would be placed at a competitive disadvantage and suffer irreparable harm if it were required to provide customer information to the public that could be used by other energy providers to target our customers. Austin Energy explained that this information is not divulged to third parties by electric utilities in private enterprise and violated the privacy rights of its customers.

On September 10, 2001, Austin’s City Council, the governing body for Austin Energy, unanimously adopted Resolution No. 010910-12 identifying “competitive matters” as defined in Senate Bill 7. The City Council excluded from the definition of “competitive matters” thirteen categories of information. Customer information is not among the thirteen categories of information that will always be made available upon written request. The City Council, in good faith, determined that the items listed in Exhibit A of the resolution were related to Austin Energy’s competitive activity and that release of such information would give advantage to competitors or prospective competitors. Item II.A. of that exhibit lists “all information regarding retail customers, including information that is currently part of the customer master file which constitutes the AE Customer Information System, as well as separate databases and files, such as a key accounts database which contains contact management information specific to each of our largest energy customers and meter reading records containing usage information” as a competitive matter. The attached requests are for information that is contained in Austin Energy’s Customer Information System data base.

Therefore, in accordance with sections 552.101, 552.104, 552.110, and 552.133, the names, addresses, premise numbers, account status, such as active or inactive, type of account should be excepted from public disclosure. The City of Austin respectfully asks that the Attorney General’s ruling be considered a previous determination under section 552.301(a) and that the City need not request determinations from the Attorney General as long as the resolution deeming all information regarding retail customers to be a competitive matter stays in effect.

If you have any questions regarding this matter please call me at 974-2180 or Teresa Benkenstein at 322-6151.

Sincerely,

John Steiner

Chief, Opinions and Research

Enclosures

cc (without attachments):

Steven A. Fleckman

1800 Bank of America Tower

31

SAMPLE LETTERPRIOR DETERMINATION

VIA FACSIMILE (512) 349-3620October 4, 2002 Mr. John Smith111 Swift Bear DriveAustin, Texas 78746

Dear Mr. Smith: In your two facsimiles received September 27, 2002 by the Electric Utility

Department, you requested information pursuant to the provisions of the Texas Public Information Act (TPIA), Tex. Gov. Code Section 552.001 et seq. Specifically, you asked for the new addresses for Bill Myron, Sally Guess, and Martin Hovermann.

Recently, the City received a ruling from the Attorney General that certain

Austin Energy customer information, including customer names and current addresses, relates to a competitive matter, and therefore, is excepted from disclosure under the TPIA. This ruling was deemed a previous determination by the Attorney General, allowing the City to withhold this information without the necessity of submitting a new request to the Attorney General.

Based on the open records ruling OR2001-5582 from the Attorney General,

we cannot provide you the requested information. If you have any questions or would like a copy of the ruling, please call me at (512) 345-3620.

Sincerely, Bill DavisAssistant City Attorney

openmeetings/open records: what you can and can't do as a mou

Documents

open meetings act

open records act

open records exceptions

open records amendments

competitive matters

closed meetings

utilitys competitive

utilityrelated matter