Texas Supreme Court Allows Private Party To Challenge Release Of Information In Hands Of Government That Is Competitively Sensitive

The Texas Public Information Act (the "PIA") "guarantees access to public information, subject to certain exceptions." Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P., 343 S.W.3d 112, 114 (Tex. 2011). Public information includes information that is collected, assembled, or maintained by or for a governmental body. TEX. GOV'T CODE § 552.002(a). Such information is available on request unless an exception applies. In re City of Georgetown, 53 S.W.3d 328, 331 (Tex. 2001). One such exception protects information "that, if released, would give advantage to a competitor or bidder." TEX. GOV'T CODE § 552.104.

The Texas Attorney General has long taken the position that section 552.104's exception protects the purchasing interests of a governmental body when conducting competitive bidding, but not those of a private party that competes in the process. Recently, in Boeing Co. v. Paxton, No. 12-1007, 2015 Tex. LEXIS 583 (Tex. June 19, 2005), the Supreme Court of Texas disagreed with the Attorney General and held that a private party may assert section 552.104's exception to protect its competitively sensitive information from disclosure.

The Boeing decision is noteworthy because it provides private entities an effective means by which to prevent their competitively sensitive information from becoming available to the general public, including their competitors. Boeing is also significant in that it allows governmental bodies to defer to private entities to protect their own competitively sensitive information, without waiving the private entity's right to judicial review of the Attorney General's opinion regarding disclosure.

The Boeing Factual and Procedural Background

In 1998, Boeing signed a lease with the Port Authority of San Antonio (the "Port") for 1.3 million square feet at Kelly Air Force Base for a term of twenty years (the "Kelly Lease"). Boeing, 2015 Tex. LEXIS 583, at *5. Several years after signing the Kelly Lease, a former Boeing Employee, Robert Silvas, submitted a PIA request to the Port for various Boeing corporate information, including the Kelly Lease. Id. at *6. The Port notified Boeing of Silvas' request and Boeing's right to seek relief from the Attorney General. Boeing provided a redacted version of the Kelly Lease to Silvas and filed objections with the Attorney General as to the redacted portions. Id. at *6-7. Boeing asserted that the information withheld was competitively sensitive information regarding its overhead...