Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 28,2004
Mr. Larry A. Olson Opinion No. GA-0266
Executive Director
Department of Information Resources Re: Whether an agency may return information
Post Office Box 13564 submitted by a business entity in response to an
Austin, Texas 7871 l-3564 agency request for offer, which was subsequently
cancelled (RQ-0226-GA)
Dear Mr. Olson:
On behalf of the Department of Information Resources (“DIR”), you ask whether an agency
may return information submitted by a business entity in response to an agency request for offer,
which was subsequently cancelled.’ To resolve this issue, we must consider whether the business
entity’s information is a state record that must be retained in accordance with section 441.185 ofthe
Government Code. &~TEx. GOV’TCODEANN. §441.180(ll)(Vernon 1998), 5 441.185 (Vernon
Supp. 2004-05); see also id. 5 552.004 (Vernon Supp. 2004-05) (authorizing a governmental body
to determine “a time for which information that is not currently in use will be preserved”).
DIR is an agency of the state, see id. 5 2054.004 (Vernon 2000), created generally to lead
and coordinate information resources management within state government. Id. 5 2054.051(a)
(Vernon Supp. 2004-05); see also id. 5 2054.003(7) (defining the term “information resources”).
Among other duties and responsibilities, DIR is required, under section 2 177.05 1 ofthe Government
Code, to “establish and manage the electronic infrastructure of an electronic procurement
marketplace.” Id. 5 2177.051(a); seealso id. $5 2054.051, ,052 (setting out DIR’s general duties and
responsibilities). The marketplace may contain information related to the state’s procurement
practices, such as information about “the state’s standard procurement specifications for goods or
services”; “vendors”; and “recycled, remanufactured, or environmentally sensitive commodities or
services.” Id. 5 2177,051(b)(1)-(2), (6); see also id. 5 2177.051(g) (listing similar items that the
marketplace may contain). The Texas Building and Procurement Commission (the “TBPC”),
another state agency, is to manage and administer the electronic procurement marketplace’s content,
see id. 3 2177.051(a); see also id. $5 2151.002, 2152.001 (defining the term “commission” and
declaring the commission to be a state agency), and either DIR or TBPC may contract with private
or public entities to “establish or maintain all or part of the databases comprising the marketplace.”
‘SeeLetter fromLarry A. Olson, Executive Director, Department of Information Resources, to Honorable Greg
Abbott, Texas Attorney General (May 4, 2004) ( on file with the Opinion Committee, also available a*
http:ilwww.oag.state.tx.us) (hereinafter Request Letter].
Mr. Larry A. Olson - Page 2 (GA-0266)
Zd. 5 2177.051(a). In addition, DIR or TBPC must “procure all goods and services related to the
marketplace through a competitive selection process appropriate for the good or service being
acquired.” Id.
You indicate that, in accordance with section 2177.051, DIR issued a “Request for
Offer [(‘RPO’)] for a Statewide eProcurement Application Solutions Provider and Associated
Implementation Services” on September 4,2002. Request Letter, supra note 1, at 1. At least two
entities responded to the RPO, and you state that the two finalists, American Management Systems,
Inc. and Accenture L.L.P., “each proposed a statewide Strategic Sourcing component of the Cost
Offer as part of the funding methodology for the . project.” Id. at 2. Each of the finalists
designated all or part of the entity’s proposal as “confidential or proprietary.” Id. On April 15,2004,
DIR cancelled the RPO, and “[i]t is not certain at this time if or when the RPO will be reissued.”
Id. But on the same day, April 15, 2004, TBPC “issued a Request for Proposal for Spending
Analysis, Strategic Sourcing, and Spend Management Services.” Id. According to the entities that
responded to DIR’s RPO, TBPC’s outstanding request for proposal “include[s] some of the same
services” as the RPO. Id.
Both of the finalists in DIR’s cancelled procurement process now request the return of the
materials they submitted to DIR “to protect their confidential and proprietary information that may
be used by other bidders on the TBPC” request for proposal or that may be used by other
bidders should DIR reissue the cancelled RPO. Id. You therefore wish to know whether the
DIR may comply with this request. We understand that the finalists are requesting the original
documents, not copies, and that DIR would not retain copies of the documents.
Chapter 441, subchapter L of the Government Code regulates the preservation and
management of state records, which include all “written, photographic, machine-readable, or other
recorded information created or received by or on behalf of a state agency . . that documents
activities in the conduct of state business or use of public resources.” TEX. GOV’T CODE ANN.
5 441.180(11) (Vernon 1998) (defining the term “state record”). Under chapter 441, each state
agency must designate a records management officer, who may be the agency head, to administer
the agency’s records management program. See id. 5 441.184(a) (Vernon Supp. 2004-05); see
also id. $ 441.180(7)-(9) (Vernon 1998) (defining the terms “records management,” “records
management officer,” and “state agency”). A records management officer must prepare a record
retention schedule that lists the types of records the agency creates and receives and that proposes
a period of time the agency will maintain the record. See id. 5 441.185(b) (Vernon Supp. 2004-05).
The schedule must be submitted to the Texas State Library and Archives Commission for approval.
Seeid. §441.185(a),(c);seealsoid. ``441.180(3),(10),(12),.181(b)(Vemon 1998), $441.182(b)
(Vernon Supp. 2004-05) (defining the terms “commission, ” “state archivist” and “state records
administrator” and setting out the archivist’s and administrator’s duties). Ifthe Library and Archives
Commission’s director and librarian, and possibly also the state auditor: approve the schedule, the
“Thestaterecords administmtorandthestate archivistreviewtherecordretentionschedule thatthe localrecords
management offker has submitted “and recommend the schedule’s approval or disapproval” to the Commission director,
(continued...)
Mr. Larry A. Olson - Page 3 (GA-0266)
state agency that is the subject of the schedule may “destroy” state records only in accordance with
the schedule. Id. $5 441.185(d) (Vernon Supp. 2004-05), 441.187(a) (Vernon 1998). Seegenerally
13 TEX. ADMIN. CODE ch. 6 (2004) (Tex. State Library & Archives Comm’n, State Records).
The materials the finalists have requested returned to them are state records for purposes of
chapter 441: the materials were “received by” DIR, a state agency, “in the conduct of state business”
and relate to a possible expenditure of state funds. TEX. GOV’T CODE ANN. 5 441.180(11) (Vernon
1998) (defining the term “state record”). Moreover, the fact that no contract was executed in this
case does not remove the records from the scope of the state records that are subject to the chapter
441 record retention schedule. They are thus subject to DIR’s retention schedule, and DIR must
retain them consistently with the schedule. See id. § 441 .I 87(a). The fact that returning the records
to the entities that created them does not, strictly speaking, “destroy” the records is immaterial, as
chapter 441 requires that the state agency retain the records. See id. 5 441.187(a) (referring to the
“destruction” of state records).
We accordingly conclude that DIR may not dispose of the requested materials except in
compliance with the time periods set forth in its record retention schedule. It may not return the
materials to the entities that created and submitted the documents unless and until the appropriate
schedule authorizes DIR to divest itself of them. We do not consider here whether a state agency
such as DIR may provide in its record retention schedule for the return of information received in
response to a cancelled RPO, nor do we consider whether the State Library and Archives
Commission may approve such a record retention schedule.
An email exchange attached to the request letter suggests that chapter 552 ofthe Government
Code, the “Public Information Act,” may resolve the issue. See Request Letter, supra note 1;’TEX.
GOV’T CODE ANN. ch. 552 (Vernon 1994 & Supp. 2004-05). Under chapter 552, all information that
a state agency collects, assembles, or maintains “under a law or in connection with the
transaction of official business” is public information that must be made available to the public
consistently with that chapter. See TEX. GOV’T CODE ANN. §§ 552.002(a), .003(l)(A)(i), ,021
(Vernon Supp. 2004-05). Confidential informationis absolutely excepted from disclosure, andother
information may be excepted from disclosure in certain circumstances. See id. § 552.101 (Vernon
1994) (excepting confidential information); see also, e.g., id. 5s 552.102, ,103, ,108 (Vernon Supp.
2004-05) (excepting certain personnel information, information relating to litigation, and certain law
enforcement information). The Public Information Act does not authorize a state agency to
relinquish the original copy of public information, and it is consequently not dispositive.
‘(-continued)
the Commission librarian, and the state auditor. TEX. GOV’TCODE ANN. 5 441.185(c) (Vernon Supp. 2004-05). “The
state auditor, based on a risk assessment and subject to the legislative audit committee’s approval ofincluding the review
in the audit plan under [Government Code] Section 32 1.013, may review the schedule.” Id. If the state auditor reviews
the schedule, the auditor’s approval is necessary for the schedule to become effective. See id. 5 441.185(d).
‘EmailcolloquybetweenReneeMauzy,DouglasDoerr,andBillMiller(Apr. 15.16,2004)(attachedtoRequest
Letter).
Mr. Larry A. Olson - Page 4 (GA-0266)
You also ask, ifwe conclude (as we have) that DIR maynot return the materials, whether the
materials should be “considered not subject to release as public information because a final contract
was not awarded.” Request Letter, supra note 1, at 1. We thus consider whether the Public
Information Act applies to the information, such that the information would be available to the
public in accordance with the Act. See TEX. GOV’T CODE ANN. ch. 552 (Vernon 1994 & Supp.
2004-05).
The information is subject to the Public Information Act because DIR collected it in
connection with the transaction of official business. See id. $552.002(a) (Vernon Supp. 2004-05)
(defining the phrase “public information”). The fact that DIR cancelled the RF0 and did not award
a contract does not alter the information’s status under the Public Information Act. Depending on
the circumstances, however, one or more of the Public Information Act’s exceptions to disclosure
may apply to information in a submitted bid. See, e.g., id. 3 552.101 (Vernon 1994), $5 552.104,
110 (Vernon Supp. 2004-05) (excepting confidential information, information that would give
advantage to a competitor or bidder, and trade secret information). Seegenerally id. ch. 552, subch.
C (Vernon 1994 & Supp. 2004-05) (listing all of the Public Information Act’s exceptions to
disclosure). Should the information be requested under the Public Information Act and DIR seek
an attorney general’s open records ruling, the entities that created and submitted the information
would be notified of the request and would have the opportunity to submit to the attorney general
their reasons that the information should be withheld, wholly or in part. See id. $5 552.201, ,301,
.305(a)-(b) (Vernon Supp. 2004-05). Whether this particular information would be excepted from
disclosure is a question to be decided in the open records process under chapter 552 and not here.
Mr. Larry A. Olson - Page 5 (GA-0266)
SUMMARY
A state agency must retain information submitted by a
business entity in response to a request for offer, which the agency
subsequently cancelled, for the period specified in the agency’s record
retention schedule created under chapter 441 of the Government
Code. The information may not be returned to the business entity that
submitted it within the time period that the information is to be
retained. The information also is subject to the Public Information
Act, chapter 552 of the Government Code, and is available to the
public unless chapter 552 excepts the information from disclosure.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee