FOIA Files: Austin Van Zant brief to AG - April 10, 2007

-The following is a brief filed by Austin Van Zant to the Attorney General appealing for disclosure of documents that the UT System had argued against on March 29. See the original March 8, 2007 Open Records Request, and the Attorney General decision on June 4, 2007.

April 10, 2007

Honorable Greg Abbott
Attorney General of Texas
Open Records Division
Price Daniel Building
209 W. 14th Street, 6th Floor
Austin, TX 78701

Dear General Abbott:

On March 29, 2007, the University of Texas (UT) System submitted to you a briefing regarding my March 8 request for information regarding any information they were keeping on UT Watch or any of its members dating from February 2002. In the briefing, they unnecessarily argued against releasing certain information.

In various rulings, you have maintained that section 552.111 is only applicable to "internal communications consisting of advice, recommendations, opinions, and other material reflecting the deliberative or policymaking processes of the governmental body."

You have also repeatedly stated, such as in OR2005-10420, "[S]ection 552.111 not applicable to personnel-related communications that did not involve policymaking...A governmental body's policymaking functions do not encompass routine internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel...Furthermore, section 552.111 does not protect facts and written observations of facts and events that are severable from advice, opinions, and recommendations."

Accordingly, I ask for similar findings.

The UT System then invoked OR2004-7973 that dealt with exempting certain "information that, if released, would give advantage to a competitor or bidder," Gov't Code § 552.104(a). However, at the end of the third paragraph, you upheld OR90-541 by stating: "Generally, section 552.104 does not except information relating to competitive bidding situations once a contract has been awarded." The LANL bid was awarded to the Los Alamos National Security LLC on December 21, 2005.

In OR2004-5255, you found that "section 552.104 requires a showing of some actual or specific harm in a particular competitive situation; a general allegation that a competitor will gain an unfair advantage will not suffice." If you do find that certain sections are exempt from disclosure, I request that such "actual or specific harm" be provided by the UT System. Additionally, in this ruling, you stated that you would withhold certain sections of the request in question pursuant to section 552.104, but only "until such time as a contract has been awarded."

The UT System has implied that they may submit another bid for the Los Alamos National Laboratory (LANL) or similar laboratories, and thus may never have to disclose any information regarding their preparation for a bid. This is actually the exact reason why I seek the disclosure of such information: to allow the public due deliberation of the merits of managing LANL. The UT System is a system of public institutions, and as such, ought to be held to even a small degree of public accountability.

Disclosure of these sections would not inhibit the UT System from submitting another bid or affect its standing; it would only help the public to review the decisions of their university system before they submit another bid. There are no current plans by the UT System to submit another LANL, and as such, this would be an appropriate time to disclose such information.

Further, the UT System attempted to proclaim a status of "marketplace 'competitor'," seeking protection from disclosure, citing OR91-593. The AG then stated part of ruling OR87-463 as follows:

"Although section 3(a)(4) protects governmental interests by assuring that the competitive bidding process will be truly competitive, it may not be claimed to protect a governmental body's 'competitive advantage' because they cannot be regarded as being in competition with private enterprise."

The AG found "this statement is overly broad," and more narrowly defined it -- but only in terms of private investments. The ruling dealt with the investments of the Teacher's Retirement System (TRS). Although I cannot discount UT having "marketplace interests," they did indeed directly compete against private institutions to bid for the management of LANL, although they also did enter into a Third Party agreement to partner with a private institution for the bid.

Third Party Agreement: Although in OR2006-06185, you found that "only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body" are available to the public, you did find that "communications with third parties with which a governmental body shares a privity of interest or common deliberative process" are exempt from disclosure. However, unless the UT System and Lockheed Martin Services, Incorporated ("Lockheed") are still holding discussions over another LANL bid, this information ought to be made public since the competition for the bid ended well over one year ago.

In short, the UT System bluntly states it should not disclose any of its "business plans, internal project discussions, and public relations strategies [since if the details] were made public, this would undermine [their] ability to optimize the financial benefit of future collaborative projects." They then state disclosure would prove a "hindrance" to their plans.

However, I submit to you that if the greater good were to improve by enactment of these projects, then the UT System should feel no impediment to full disclosure or aversion to public scrutiny. Students, faculty, and publicly elected representatives who could benefit from such collaborations should have input on these projects.

I will cite an example: I requested, in compliance with § 552.228 of the Government Code, that "If any copies exist in an electronic format, I would request them at no cost to me". After due diligence, the UT System decided to release a document to me entitled Budget Analysis of the University of Texas at Austin: A Student's Perspective, a report I principally authored in October 2003, which can be found online.[1]

After contacting the System, they cordially acquiesced to my suggestion to not make the disclosure of other documents contingent of payment of these documents since they are widely available online at no cost to any reader of the UT Watch website. However, the UT System wrote three (3) paragraphs arguing against the release of its response to this document, largely citing Section 552.111 of the Government Code and calling their response "an agency memorandum." However, this is also online.[2]

Looking at the document, I can see that it is indeed a point-by-point rebuttal, one that allowed me to understand how the administrators' perspective on the issues that I raised. This document actually allowed me to continue productive conversations on issues of tuition and University finances with several System administrators and one of the two authors of the rebuttal.

Also, in September 2003, after discussions between this author and myself over the applicability of the Open Meetings Act to the Tuition Policy Advisory Committee, the UT Austin website created a new section to openly publish some of their findings and the raw data.[3] This allowed students and parents to review some of the facts to better understand tuition increases. Although it unfortunately no longer appears maintained, it proved a valuable resource, but more importantly it proved just how beneficial openness and transparency could be to producing dialogue not only between administrators but between administrators and those they serve.

I worry that other documents that UT is now arguing to keep secret could prevent them from communicating with students and the public community at large, who should prove no obstacle or "hindrance" if their interests are the ones who are primarily served by such projects.

Sincerely,

Austin Van Zant

cc:

Carol Longoria
University of Texas System
Office of General Counsel
201 W. 7th Street
Austin, TX 78701-2902