KBS Reference Desk: Trade Secrets Proprietary Info and SB 943

Q:        Our district advertised an RFP seeking proposals from vendors for athletic equipment. The district received and considered several proposals before it selected three approved vendors. One of the approved vendors recently learned the district also placed two of its primary competitors on the approved vendor list and submitted a public information request for its competitors’ proposals and copies of the vendors’ contracts with the district. We heard that the Legislature amended the Public Information Act to add new requirements regarding disclosing certain contract information and notifying affected third parties so they might argue to the AG for protection. Is this true? 

A:        Yes. Senate Bill 943, effective on January 1, 2020, will require districts to promptly make a good faith attempt to notify affected parties in writing of the request. To prevent disclosure, that entity must establish that the requested information meets the new, statutory definition of a trade secret based on specific factual evidence and does not fit within certain categories of contracting information subject to disclosure. 

The Texas Public Information Act (“TPIA” or the “Act”) is codified in Chapter 552 of the Texas Government Code and generally ensures the public’s access to governmental information in an effort to promote accountability and transparency. To that end, the TPIA allows the public to access most governmental information unless one of about 60 exceptions applies. See Tex. Gov’t Code §§ 552.101-.154, 552.301. In 2015, the Texas Supreme Court issued its Boeing Co. v. Paxton decision, which vastly reduced the public’s access to information about governmental contracting. The Legislature recently voted and passed Senate Bill 943 (the “Bill”) requiring governmental entities to release certain contracting information in its efforts to restore transparency related to governmental contracting.  

Relevant to the district’s question above, the new law compels a school district to seek the opinion of the Attorney General prior to release of any third party’s suspected trade secret/proprietary information. See Tex. Gov’t Code § 552.305(a).  This request must be submitted no later than the tenth business day after the governmental body receives the TPIA request. See Tex. Gov’t Code § 552.301(b). Within the letter, the district must cite to the particular provisions of the Act believed to preclude disclosure – in this instance, Sections 552.110 and/or 552.1101 of the Texas Government Code (regarding the confidentiality of trade secrets and proprietary information, respectively). Also within that same tenth business day deadline, the amended TPIA now requires that the governmental body make a good faith attempt to notify affected parties of the request and their options to prevent disclosure. See Tex. Gov’t Code §552.305(d). Specifically, the governmental body must include a statement prescribed by the AG that the affected party is entitled to submit in writing to the AG within ten business days each reason justifying the withholding of the requested information and a letter, memo, or brief supporting the reasons. Id. A copy of the public information request must be attached to the written notification. Id. The AG’s Office provides a third-party notice form on its website at: https://www.texasattorneygeneral.gov/open-government/governmental-bodies/proprietary-information-request

Intended to minimize the number of arguments submitted by vendors seeking confidentiality of documents reviewed and routinely deemed subject to disclosure by the AG, the new statute specifically provides that the trade secret and proprietary information exceptions to the TPIA do not apply to the following types of contracting information: contracts or contract terms specifying the contracting parties; goods or services to be provided; prices and liabilities; execution date, effective date, delivery or service deadlines, duration, and extension options; remedies for breach of contract; the overall pricing for a potential or current contractor; and information regarding whether a contractor performed under the contract. See Tex. Gov’t Code §§ 552.0222.  

For additional or specific questions regarding Senate Bill 943 and navigating the TPIA, please contact your local school attorney.




Related Posts

Recent Articles

KBS Reference Desk: On Call Employees over 4th of July Holiday
July 1, 2022
KBS Reference Desk: Employment of Students
June 24, 2022
KBS Reference Desk: TOMA Social Gatherings Conventions
June 17, 2022
KBS Reference Desk: Volunteers Under Guardian Plan
June 10, 2022
KBS Reference Desk: DOI and Certification
June 3, 2022
KBS Reference Desk: FML Leave Over the Summer
May 27, 2022
KBS Reference Desk: Decrease in Compensation
May 20, 2022
KBS Reference Desk: Participation in Graduation Ceremonies
May 13, 2022
KBS Reference Desk: Temporary Custodians of Record – TPIA
May 6, 2022
KBS Reference Desk: Driving Students to Polls
April 29, 2022
KBS Reference Desk: Authority to Create New Position
April 22, 2022
KBS Reference Desk: Booster Club Raffle
April 15, 2022
KBS Reference Desk: Returning a Teacher to Probationary Status
April 8, 2022
KBS Reference Desk: Termination of Probationary Contract While On Leave
April 1, 2022
KBS Reference Desk: Long COVID and Special Education Referrals
March 25, 2022
KBS Reference Desk: Pay During Weather Closure
March 18, 2022
KBS Reference Desk: Nepotism
March 11, 2022
KBS Reference Desk: New SBOE Rules on Contract Abandonment
March 4, 2022
KBS Reference Desk: Web Accessibility
February 25, 2022
KBS Reference Desk: Political Advocacy Prohibitions
February 18, 2022
KBS Reference Desk: Pay During Weather Closure
February 11, 2022
KBS Reference Desk: House Bill 2581 Procurement Updates
February 4, 2022
KBS Reference Desk: CDL Waivers for Bus Drivers
January 28, 2022
KBS Reference Desk: Interstate Travel Liability and Travel Forms Best Practices
January 21, 2022
KBS Reference Desk: Updated Stay at Home Periods
January 14, 2022