the Boeing Company v. Greg Abbott, Attorney General of Texas, and the Greater Kelly Development Authority N/K/A the Port Authority of San Antonio

TEXAS COURT OF

APPEALS, THIRD DISTRICT, AT AUSTIN

NO.

03-10-00411-CV

The Boeing Company , Appellant

v .

Greg Abbott, Attorney General of Texas, and The Greater Kelly Development Authority n/k/a The Port

Authority of San Antonio , Appellees

FROM THE DISTRICT COURT OF TRAVIS

COUNTY, 345TH JUDICIAL DISTRICT

NO. D-1-GN-05-004504, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

O P I N I O N

Boeing Company

appeals from the district court  s

final judgment denying Boeing  s

request for declaratory and injunctive relief under the Texas Public

Information Act (PIA). See Tex. Gov  t Code Ann.   552.001-.353 (West 2004

& Supp. 2010). Boeing brought

suit seeking to prevent disclosure of portions of a real property lease

agreement between Boeing and The Greater Kelly Development Authority n/k/a The

Port Authority of San Antonio (  the

Port  ). The final judgment denies Boeing its

requested relief and orders that the information at issue be made available to

the requestor. We affirm the district court  s

judgment.

BACKGROUND

Boeing is a

major aerospace company, providing goods and services to both the private and

public sectors. [1] In 1995, Boeing  s

lease with American Airlines in Tulsa, Oklahoma, was ending, and Boeing had

begun a nationwide search for suitable, substitute property to lease.

Eventually, Boeing entered into lease negotiations with the Port regarding

property at the former Kelly Air Force Base in San Antonio, Texas (  Kelly  ).

According to

Boeing, these lease negotiations continued for more than two years

and involved more than twelve Boeing employees. In addition, Boeing hired

outside consultants to develop a  competitive

range 

model with respect to any proposed lease terms. Through negotiations, Boeing sought to obtain

lease terms within this competitive range in order to assure its ability to

compete for future government contracts from the Kelly location.

According to

the Port, in order to induce Boeing to relocate to San Antonio, the City of San

Antonio secured a $32.5 million loan from the U.S. Department of Housing and

Urban Development to pay for property improvements at Kelly. In turn, the City of San Antonio loaned the

Port $32.5 million to complete the improvements. In 1998, Boeing and the Port executed a lease

for approximately 1.3 million square feet at Kelly for an initial term of

twenty years (  the

Lease  ).

The Port claims that Boeing  s

payments under the Lease help the Port repay the loan to the City of San

Antonio.

At Kelly,

Boeing  s

work has consisted primarily of aircraft maintenance and modification for the

United States Air Force. Among the

aircraft serviced by Boeing at Kelly are the C-17 Globemaster ,

the C-130 Hercules cargo aircraft, and the KC-135 Stratotanker . Under contracts with the Air Force, Boeing is

responsible for upgrading and maintaining these aircraft as necessary. For example, Boeing services K-135s,

Eisenhower-era tankers which provide in-flight refueling, by doing complete

upgrades and periodic inspections to determine if the airplanes are safe to

continue in operation. Similarly, Boeing

upgrades C-17s, an aircraft used in both military and humanitarian missions, by

making their configurations more uniform and thus easier to fly and

maintain. Boeing also installs defensive

countermeasures on the C-17s, allowing the aircraft to thwart missile attacks

when supplying forces in hostile areas.

Finally, Boeing is responsible for modernizing the avionics of over two

hundred C-130s, a four engine turbo-prop cargo plane that has been in

continuous use for more than fifty years.

In 2005, Robert

Silvas made a request under the PIA for, among other

things, the Lease between Boeing and the Port. [2] Boeing notified the Attorney General of Texas

of its objections to the release of certain Lease terms, primarily related to

amounts paid by Boeing under the Lease, including rental rates, share of common

maintenance costs, insurance-coverage requirements, liquidated-damages

provisions, and lease incentives (  the

Lease information  ).

See Tex. Gov  t

Code Ann. 

522.305(b) (West 2004) (providing that person whose privacy or property

interests are implicated by request may submit reasons for withholding

information to attorney general). Upon

considering Boeing  s

objections, the attorney general issued a letter ruling determining that the

Lease information was not excepted from

disclosure under the PIA. [3]

Boeing then filed

suit against the attorney general and the Port, challenging the attorney

general  s

ruling. [4] In this suit, Boeing sought a declaration

that the Lease information is not subject to disclosure because the information

falls within one or more exceptions to disclosure under the PIA. Boeing also sought an injunction to prevent

the Port from disclosing the information on this basis. See id . 

552.3215 (West 2004) (providing that person who claims to be victim of PIA

violation may bring suit for declaratory judgment or injunctive relief). After a bench trial on the merits, the court

denied Boeing any relief and ordered that the Port make the information

available to Silvas .

The court then issued findings of fact and conclusions of law. In relevant part, the court found that (1)

the Lease is a contract relating to the receipt or expenditure of public or

other funds of a government body, (2) the Lease information is not a trade

secret, and (3) the Lease was negotiated between Boeing and the Port and is

fully executed, is not the result of competitive bidding, and is not subject to

any competitive-bid process. The court

issued the following relevant conclusions of law:

1. This is a suit by [Boeing] seeking to withhold information from

a requestor, pursuant to the Texas Public Information Act (PIA), Tex. Gov  t

Code  552.325 (West

2004).

. . .

5. Common law trade secrets does [sic] not protect the information at issue

from disclosure.

. . .

9. Tex. Gov  t Code 

552.104 does not except the information at issue from disclosure.

10. [Boeing] lacks standing to assert section

552.104 as a basis for withholding the information at issue.

. . .

14. The information at issue must be

disclosed under Tex. Gov  t

Code  552.022(a )( 3); no other law, including common law trade secrets,

expressly makes the information confidential.

On appeal,

Boeing asserts that the trial court erred in ordering disclosure of the Lease

information. Specifically, Boeing asserts

in three issues that (1) the Lease information is a trade secret, and therefore

protected from disclosure under section 552.022 as  expressly

confidential under other law, 

(2) Boeing has standing to invoke section 522.104 of the PIA, and (3) the Lease

information would give advantage to a competitor or bidder and therefore is

protected from disclosure under section 522.104 of the PIA.

STANDARD OF REVIEW

In an appeal of

a bench trial, findings of fact issued by the trial court have the

same force and effect as a jury verdict.

Anderson v. City of Seven Points , 806 S.W.2d

791, 794 (Tex. 1991).

Unchallenged findings of fact are binding on an appellate court unless

the contrary is established as a matter of law or there is no evidence to

support the finding. See McGalliard v. Kuhlmann , 722 S.W.2d 694, 696-97 (Tex. 1986). As the fact finder, the trial court is the

sole judge of the credibility of the witnesses and the weight to be given their

testimony. Id .

We review a trial court  s

conclusions of law de novo. BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002). Similarly, issues of statutory

construction are questions of law that are reviewed de novo. City of San Antonio v.

City of Boerne , 111 S.W.3d 22, 25 (Tex. 2003). In construing a statute, our primary objective

is to determine the legislature  s

intent, which, when possible, we discern from the plain meaning of the words

chosen. Id . Accordingly, once the facts are established,

a determination of whether an exception under the PIA applies to support the

withholding of public information is a question of law. See City of

Garland v. Dallas Morning News , 22 S.W.3d 351, 357 (Tex. 2000).

DISCUSSION

The Texas Public Information Act

The

express purpose of the PIA is to ensure public access to complete information

about the affairs of government and its public officials and employees. See Tex. Gov  t Code Ann.  552.001(a) (West 2004). Through this access to information, the

public  may

retain control over the instruments they have created.  Id.

Consistent with this policy, the legislature has mandated that the PIA

is to be liberally construed in favor of granting requests for

information. Id .  552.001(b).

Under the PIA,

information that is collected, assembled, or maintained by or for a

governmental body is public information. Id .  552.002(a) (West 2004). Public information is available upon request

and may not be withheld from disclosure unless it falls within an exception to

disclosure provided for in the PIA. In

re City of Georgetown , 53 S.W.3d 328, 331 (Tex. 2001) (orig. proceeding) ;

Arlington Indep . Sch. Dist. v. Texas Attorney Gen .,

37 S.W.3d 152, 157 (Tex. App .  Austin

2001, no pet.). The exceptions to

disclosure under the PIA are to be narrowly construed. Arlington Indep . Sch. Dist ., 37

S.W.3d at 157 . A

governmental body that wishes to withhold requested information must request a

determination from the attorney general, asserting which exceptions under the

PIA permit the governmental body to withhold the information. Id .

A governmental body generally waives any exception to disclosure that it

fails to raise before the attorney general.

Tex. Gov  t

Code Ann. 

522.326 (West 2004).

In addition,

section 552.022 of the PIA sets out categories of public information that are excluded from the exceptions provided for in the

PIA. Texas Dep  t

of Pub. Safety v. Cox Tex. Newspapers, L.P. , 343 S.W.3d 112,

114 (Tex. 2011); see Tex. Gov  t Code Ann.  552.022 (West 2004). Requested information that falls within one

of these categories is considered core public information and must be disclosed

unless it is  expressly

confidential under other law,  meaning

law other than the PIA. Tex. Gov  t

Code Ann. 

552.022(a) ; Cox

Tex. Newspapers , 343 S.W.3d at 114 ; see also In re City of

Georgetown , 53 S.W.3d at 331 .

Information in a contract relating to the receipt or expenditure of

public or other funds by a governmental body is a category of information

considered core public information under section 522.022(a )( 3). See Tex. Gov  t Code Ann.  552.022(a )( 3).

In this case,

the trial court found that the Lease is a  contract

relating to the receipt or expenditure of public or other funds of a government

body.  Accordingly, the court concluded that

disclosure of the Lease information is governed by 522.022(a )( 3). Boeing does not dispute that the information

sought is public information or that it is core public information under

section 552.022(a )( 3).

Rather, Boeing argues that the Lease information is a common-law trade

secret and therefore protected from disclosure under section 552.022 as  expressly confidential under

other law.  See id . 

552.022(a).

Boeing also contends that the Lease information falls within section

552.104, which excepts from disclosure information  even

core public information  that

if disclosed would  give

advantage to a competitor or bidder.  Id .  552.104(b) (West 2004). [5]

Trade-secret protection under section

522.022

We turn first

to whether the Lease information is  expressly

confidential under other law 

and therefore exempt from the mandatory disclosure requirement of section

522.022. At trial and now on appeal,

Boeing argues that the Lease information is  expressly

confidential under other law 

because it is a common-law trade secret.

This Court has previously recognized that common-law trade-secret

information is treated as confidential and exempt from mandatory disclosure

under section 552.022 of the PIA. See Center for Econ. Justice v. American Ins. Ass  n , 39 S.W.3d 337, 348 (Tex.

App .  Austin

2001, no pet.) (finding that common-law trade-secret information is

confidential and entitled to protection from disclosure, even though otherwise

subject to mandatory disclosure under section 522.022); see also Tex. R.

Evid . 507 (trade-secret privilege); In re City of

Georgetown , 53 S.W.3d at 337 (noting that documents privileged or

confidential under Texas Rules of Civil Procedure or Texas Rules of Evidence

are  expressly

made confidential under other law 

under section 522.022). Because the

Lease information is exempt from mandatory disclosure under section 522.022 if it

is a trade secret, we next examine whether the Lease information constitutes a

common-law trade secret.

At trial,

Boeing had the burden of establishing that the Lease information is a trade

secret. See Trilogy Software, Inc. v.

Callidus Software, Inc ., 143 S.W.3d 452, 467

(Tex. App .  Austin

2004, pet. denied). Unless established

or disproved as a matter of law, the existence of a trade secret is a question

of fact. See Rusty  s Weigh Scales & Serv., Inc.

v. North Tex. Scales, Inc. , 314 S.W.3d 105, 109 (Tex. App.  El Paso 2010, no pet.)

(explaining that appellant had burden at trial to present evidence of existence

of trade secret to support findings of fact on misappropriation-of-trade-secret

claim); see also Zoecon Indus. v. American

Stockman Tag Co. , 713 F.2d 1174, 1179 (5th Cir. 1983) (  Whether customer information is

generally known or readily ascertainable is a question of fact.  ). As the fact finder, the

trial court found that the Lease information is not a trade secret. This Court is bound to this finding unless

the evidence demonstrates, as Boeing contends it does, that the Lease

information is a trade secret as a matter of law. See McGalliard ,

722 S.W.2d at 696 -97 .

The Lease information is a trade secret as a matter of law only if we

determine, after examining the entire record, that the evidence conclusively

establishes that the Lease information is a trade secret. See Dow Chem. Co. v.

Francis , 46 S.W.3d 237, 241 (Tex. 2001).

A trade secret

is any formula, pattern, device, or compilation of information which is

used in one  s

business and presents an opportunity to obtain an advantage over competitors

who do not know or use it. In re Bass ,

113 S.W.3d 735, 739 (Tex. 2003) (orig. proceeding). It is a process or device for continuous use

in the operation of the business and generally relates to the production of

goods. Trilogy Software, Inc. ,

143 S.W.3d at 463 (citing Hyde Corp. v. Huffines ,

314 S.W.2d 763, 777 (Tex. 1958)). To

determine whether a trade secret exists, we weigh six non-exclusive factors:

(1) the extent to which the information is known outside of the

business;

(2) the

extent to which it is known by employees and others involved in the business;

(3) the

extent of the measures taken to guard the secrecy of the information;

(4) the

value of the information to the business and its competitors;

(5) the

amount of effort or money expended in developing the information; and

(6) the ease or

difficulty with which the information could be properly acquired or duplicated by others.

In re Bass ,

113 S.W.3d. at 740 (citing Restatement of Torts 

757 cmt . b (1939); Restatement (Third) of Unfair

Competition 

39 reporter  s

n. cmt . d (1995)). A determination of whether information

qualifies as a trade secret must be made through a comparative evaluation of

all the relevant factors and surrounding circumstances, including the value,

secrecy, and definiteness of the information. Id . at

739.

Consistent with

these first three factors, we recognize that a trade secret must be

secret. See McClain v. State , 269

S.W.3d 191, 195 (Tex. App .  Texarkana

2008, no pet.); Stewart &

Stevenson Servs ., Inc. v. Serv -Tech,

Inc. , 879 S.W.2d 89, 96 (Tex. App.  Houston

[14th Dist.] 1994, writ denied). While

absolute secrecy is not required, a substantial element of secrecy must

be demonstrated. See Trilogy

Software, 143 S.W.3d at 467 (  Before

information can be a  trade

secret 

there must be a substantial element of secrecy.  );

Astoria Indus. of Iowa, Inc. v. SNF, Inc ., 223 S.W.3d 616, 634 (Tex.

App.  Fort

Worth 2007, pet. denied). A substantial

element of secrecy exists when the information is not generally known or

readily ascertainable by independent investigation. Trilogy Software , 143 S.W.3d at 467 ;

see McClain , 269 S.W.3d at 195 (noting that substantial element of

secrecy exists when there would be difficulty in acquiring information except

by use of improper means). The party

claiming trade-secret status has the burden of establishing secrecy. Trilogy Software , 143

S.W.3d at 467 .

At trial, David

Bouse , former director of human resources for Boeing,

testified that the Lease is not publicly available, such as through Boeing  s internal or external

websites. He also testified that the

Lease is kept in a file cabinet in the office of Boeing  s

facility manager and that access to the Lease within Boeing is limited to

senior staff members in finance and management. With regard to first and second

factors, the undisputed evidence demonstrates that Boeing has not generally

made the Lease information known outside its business and has limited its

availability to certain employees within Boeing.

Also relevant

to the determination of whether the Lease information is secret is the third factor,

the extent of measures taken to guard the secrecy of the information. See In re Bass , 113 S.W.3d at

740 . A party that fails to take

reasonable precautions to secure the secrecy of its information cannot claim

that the information constitutes a trade secret. See Phillips v. Frey , 20

F.3d 623, 630-31 (5th Cir. 1994) (explaining that outside any confidential

relationship, one who voluntarily discloses secret information or fails to take

reasonable precautions to secure its secrecy cannot properly claim that

information constitutes trade secret (citing Interox

Am. v. PPG Indus., Inc ., 736 F.2d 194, 202 (5th Cir. 1984))). While information disclosed to another party

does not necessarily lose its secrecy, the disclosure must be made in a manner

that places a duty on the receiving party not to disclose or use the

secret. Id . at 630 (noting that

owner of trade secret will not lose secrecy by disclosure if he creates duty in

some manner and places that duty upon another not to disclose or use secret).

Bouse testified that Boeing is always  very concerned about the

confidentiality of agreements that it enter[s] into, especially where financial

terms are disclosed.  However, it is undisputed that both Boeing

and the Port had access to the Lease information which Boeing claims is a trade

secret, and there is no evidence that Boeing took any reasonable precautions to

prevent the Port from disclosing the Lease information. There is no evidence

that the Port was contractually obligated to Boeing to protect the Lease

information, such as through a confidentiality agreement. Further, the evidence

does not establish, nor has Boeing argued, that the Port had a confidential

relationship with Boeing or any other legal duty to protect the Lease

information. See Gonzales v. Zamora ,

791 S.W.2d 258, 265 (Tex. App .  Corpus

Christi 1990, no writ) (noting that trade-secret protection is available even

in absence of express agreement not to disclose materials where confidential

relationship exists); see also Crim Truck & Tractor Co. v. Navistar Int  l

Transp. Corp ., 823 S.W.2d 591, 594-95 (Tex. 1992) (recognizing that

contractual relationship does not normally give rise to confidential

relationship, even where evidence of subjective trust). For example, there is no evidence that Boeing

informed the Port at the time it entered into the Lease that it considered the

Lease information confidential or a trade secret. See Phillips , 20 F.3d at 632 (noting

that fact finder could have found that defendant knew information disclosed

during negotiations was trade secret and that disclosure was made in

confidence); cf. Hyde Corp. , 314 S.W.2d at 777 (noting that

existence of confidential relationship is to be determined in each case, and

viewing  picture

as a whole, 

trial court concluded that confidential relationship existed). Rather, the attorney general presented

evidence that the Port gave members of the news media access to the Lease and

that some of the Lease terms, including the range of rent expected to be paid,

were discussed in an article printed in the San Antonio Business Journal. Further, Terry Britton, senior vice president

of real estate development for the Port, testified that the Port  s annual audit financial

reports, containing the amounts that Boeing has paid annually to the Port

under the Lease, are available to the public. Based on this evidence, the

trial court could have reasonably concluded that Boeing failed to take

reasonable precautions to protect its alleged trade secret.

Under the

fourth factor, we consider the value of the information to Boeing and its

competitors. See In re Bass , 113

S.W.3d at 740 . At trial, Bouse testified that the bidding process for the government

contracts upon which Boeing  s

work is based is extremely competitive, with much of the overhead dictated by

the federal government. Bouse also testified that if the Lease information were

released, a competitor could do  a

build-up of the total cost of the lease to Boeing, which is a substantial

portion of [Boeing  s]

overhead expense at Kelly Air Force Base.  According to Bouse ,

with this information a competitor could  locate

other suitable air fields around the United States, enter into

negotiations with municipalities in those parts of the country and get much more

favorable deals than what we have on the table and put us [at] a competitive

disadvantage in retaining the current work that we have. 

However, this

argument fails to take into account the myriad of other factors that might

influence the cost of any lease a competitor might obtain from other

municipalities, such as size and location of the property. This argument also assumes that lease cost is

the sole determining factor in bids for a government contract. At trial, Bouse

acknowledged that the overhead rate used in Boeing  s

government bids includes elements such as utilities, indirect labor, and

management cost, in addition to lease cost. Boeing  s

bids also include general and administrative corporate allocations, as well as

profits.

Based on the evidence presented, the trial court could have reasonably

concluded that Boeing failed to establish that the information was of

sufficient value to Boeing and its competitors to constitute a trade secret.

Based on our

review of the record, the evidence fails to conclusively establish that the

Lease information is a trade secret. See

City of Keller v. Wilson , 168 S.W.3d 802, 816 (Tex. 2005) (  Evidence is conclusive only if

reasonable people could not differ in their conclusions, a matter that depends

on the facts of each case.  ). Because Boeing has not shown that the

information it seeks to protect is a trade secret as a matter of law, we are

bound to the trial court  s

finding that it is not. See

McGalliard , 772 S.W.2d at 696 (findings of

fact are binding on appellate court unless contrary is established as matter of

law or there is no evidence to support finding). Based on this finding, the court did not err

in concluding that trade-secret law does not protect the Lease information from

mandatory disclosure under section 522.022.

Boeing  s

first issue is overruled.

Information related to

competition or bidding under section 552.104

We now turn to

whether the Lease information is excepted from

disclosure under section 552.104 of the PIA.

Under this section, information that would give advantage to a

competitor or bidder if released is excepted from

disclosure. Tex. Gov  t Code Ann.  552.104(a). Section 552.104 is

a unique PIA exception because it expressly provides that the disclosure

mandate normally applicable to core public information under 552.022 does not

apply. Id .  552.104(b). In other words, this exception to disclosure

applies even when the information at issue is core public information, like the

Lease information in this case. Id . Boeing argues that the trial court erred in

concluding that (1) Boeing lacks standing to assert section 552.104 as a basis

for withholding the information at issue and (2) that section 552.104 does not

except the information at issue from disclosure. We first decide the threshold issue of

whether Boeing has standing to assert this exception.

The standing

issue presented in this case is whether the PIA affords a private party, like

Boeing, the right to enjoin a governmental body from disclosing public

information on grounds that it is excepted from

disclosure under section 552.104. [6] The attorney general contends that the

trial court correctly concluded that Boeing has no right to assert section

552.104. The attorney general argues

that the exception does not protect the legal interests of third parties like

Boeing. Rather, the attorney general contends, section 552.104 is meant to

protect the government  s

purchasing interests and can be waived by the governmental body if not properly

raised. Section 552.110, which excepts from disclosure trade secrets and proprietary

information, is meant to protect the interests of third parties. [7] Accordingly, the attorney general argues, any

proprietary interest that Boeing has in the Lease information is properly

asserted under section 552.110, not section 552.104. [8]

Boeing counters

that the trial court  s

conclusion that section 552.104 may not be invoked by a private party is

contrary to the plain and reasonable reading of the statute. Boeing contends that section 552.104 protects

any information that would  give

an advantage to a competitor 

without limitation. Since

only private parties have competitors, Boeing reasons, the exception necessarily

protects private interests.

However, even

assuming that section 552.104 protects the interest of private parties, as

Boeing argues, it does not follow that the legislature intended for a private

party to have the right to prohibit a governmental body from disclosing

information on this basis. In this case,

Boeing  s

assertion of section 552.104 is premised on the assumption that the government

is prohibited from disclosing information that is excepted

under section 552.104. For the reasons

set forth below, we find that a plain reading of the PIA shows that section

552.104 is a purely discretionary exception. That is, if section 522.104

applies to information  even

core public information  the

exception from disclosure may be waived by the governmental body, unless

disclosure is  prohibited

by law 

or the information is  confidential

under law.  Boeing does not assert that disclosure of the

Lease information is  prohibited

by law 

or that the Lease information is  confidential

under law, 

other than trade-secret law, an argument which we have already rejected. The Port can waive, and in effect has waived,

any claim to withhold the information under section 552.104. Tex. Gov  t Code Ann.  552.326 (West 2004). Because the waiver decision belongs solely to

the governmental body, the trial court did not err in concluding that Boeing

has no right under the PIA to assert section 552.104 to enjoin the Port from

disclosing the Lease information.

When

determining a private litigant  s rights under a statute, like the PIA, our duty is to

ascertain the legislature  s

intent. See Brown v. De La Cruz ,

156 S.W.3d 560, 562 (Tex. 2004); Abbott v. Texas Dept. of Health &

Mental Retardation , 212 S.W.3d 648, 655 (Tex. App .  Austin 2006, no pet.). In construing a statute, ordinarily we are

confined to the plain language of the statute, construing the statute as whole,

as opposed to isolated provisions. Mid-Century

Ins. Co. v. Ademaj , 243 S.W.3d 618, 621 (Tex.

2007); see State v. Gonzalez , 82 S.W.3d 322 , 327 (Tex. 2002) (  [W]e determine legislative

intent from the entire act and not just isolated provisions.  ). We presume that the Legislature intended all

provisions of the statute to be effective, with a just and reasonable result. City of Dallas v. Abbott , 304 S.W.3d 380, 384 (Tex. 2010). We may consider the objective of the statute,

legislative history, and the consequences of a proposed construction. Tex. Gov  t Code Ann.  311.023(1), (3), (5) (West

2005).

We also give

due consideration to attorney general decisions in cases involving the PIA,

under which the attorney general is mandated to determine the applicability of

exceptions to disclosure. Rainbow Grp .,

Ltd. v. Texas Emp  t

Comm  n ,

897 S.W.2d 946, 949 (Tex. App.  Austin

1995, writ denied). In interpreting

section 552.104, the attorney general has previously ruled that section 552.104

can be waived by a governmental body and, further, is designed to protect the

interests of a governmental body, not a private party. See Tex. Att  y Gen. OR1991-592, 8

(determining that PIA exception 3(a)(4), now section 552.104, can be waived by

governmental body); see also Tex. Att  y Gen. OR1998-514, 2 (noting

that PIA exception, now section 552.104, protects government purchasing

interests); Tex. Att  y

Gen. OR1988-509, 4 (same). While these

decisions are not controlling, because the interpretation urged in the

decisions is reasonable when the statute as a whole is considered, we find them

persuasive. See

City of Dallas , 304 S.W.3d at 384 (noting that attorney general  s interpretation of PIA may be

persuasive, though not controlling).

Under the PIA,

a governmental body must make public information available upon request unless excepted under the PIA.

See generally Tex. Gov  t Code Ann.   552.101-.1425 (West 2004

& Supp. 2010). That is, a

governmental body is not required to disclose public information if the

information falls within one or more specific exceptions set forth in the PIA. [9] See Arlington Indep .

Sch. Dist. , 37 S.W.3d at 157 (  The

Legislature has established a wide range of exceptions to the Act which permit

governmental entities to withhold certain information from the public.  ) ( emphasis

added). However, it does not follow that

a governmental body, like the Port, is necessarily prohibited from disclosing

information simply because it is excepted from

required disclosure under the PIA.

Instead, the

plain language of the PIA permits, but does not require, a governmental body to

withhold public information that falls within an exception under the PIA. This discretion is derived from section

552.007 of the PIA, which states:

[The PIA] does not prohibit a governmental body or

its officer for public information from voluntarily making part or all of its

information available to the public, unless the disclosure is expressly

prohibited by law or the information is confidential under law.

Tex. Gov  t Code Ann.  552.007(a) (West 2004). This section makes clear that a governmental

body may voluntarily disclose any public information, even when not otherwise

required to disclose it, unless such disclosure is prohibited. See id .; Birnbaum v. Alliance of

Am. Insurers , 994 S.W.2d 770, 776 (Tex. App .  Austin 1999, pet. denied)

(explaining that under section 552.007 of the PIA government agency may

release any information not expressly prohibited from release). The PIA prohibits a governmental body from

disclosing public information only when disclosure is  prohibited by law  or the information is  confidential under law.  See Dominguez v. Gilbert , 48 S.W.3d

789, 793 (Tex. App .  Austin

2001, no pet.) (  A

governmental body can voluntarily disclose records that it is not required to disclose unless those records are  confidential

under law.  ).

While information that is excepted from disclosure in

some cases may be  confidential

under law, 

the fact that information is excepted under the PIA does not, in and of itself,

render the information confidential under law.

Birnbaum , 994 S.W.2d at 776 (explaining that if section 552.122

exception applied to information, the government could reject the exception and

disclose information pursuant to section 552.007); see Cox Tex.

Newspapers , 343 S.W.3d at 122 (Wainwright, J., concurring) (   Public

information 

may be excepted from disclosure under Subchapter C, or may be prohibited from

disclosure if the information is deemed  confidential.  

(citing Tex. Gov  t

Code Ann.  

552.007, .101, .352 (West 2004))).

Accordingly, the fact that information is excepted

under the PIA does not necessarily prohibit its disclosure by the government.

Further, there

is nothing that indicates that section 552.104 itself

creates a class of information that is  confidential

under law.  See Birnbaum , 994 S.W.2d at 776

(finding that section 552.112 under the PIA is  a

permissive exception 

and explaining that section 552.112, excepting certain information in

governmental reports regarding financial or securities institutions, does not  itself create a class of

information that is confidential under law  ). Even if we were to interpret section 552.104

broadly, as Boeing suggests, to include any information that would give an

advantage to a private party  s

competitor without limitation, there is no indication that such information is

considered confidential under the PIA or any other law. When the legislature has intended to make

information confidential, it has done so in express terms. Id .

For instance, section 552.132 of the PIA expressly makes confidential

certain information regarding crime victims.

Tex. Gov  t

Code Ann. 

552.132 (West Supp. 2010). Similarly,

credit card and debit card information is expressly confidential under the

PIA. Id .  552.137 (West 2004). There is nothing in the PIA that suggests

that the legislature intended information excepted

under section 552.104 to be treated as confidential. Further, there is nothing that would suggest

that information  that

would give an advantage to a competitor 

is considered confidential under any other law, including statutory

law, constitutional law, or judicial decisions . See id . 

552.101 (West 2004).

Therefore, section 552.104 is a discretionary exception which can be

waived by the governmental body. See Birnbaum , 994 S.W.2d at 776 (finding that section

552.112 is permissive exception that government may waive in its

discretion). Absent a showing

that disclosure of the Lease information is specifically  prohibited by law  or  confidential

under law, 

it is within the Port  s

discretion to waive any claim to withholding under section 552.104.

Neither the

trial court  s

findings nor evidence in the record would support the conclusion that

disclosure of the Lease information is  prohibited

by law 

or that the information is  confidential

under law.  In this case, the trial court did not find

that disclosure of the Lease information is prohibited by law or confidential

under law. Rather, the court concluded

that  no

other law, including common law trade secrets, expressly makes the information

confidential.  On appeal, Boeing does not contend that

disclosure of the Lease information is prohibited by law or confidential under

law, aside from trade secret law.

Therefore, it was within the Port  s

discretion to waive any claim to withholding under section 552.104. [10] Boeing has no right under the PIA to prohibit

the disclosure of public information on grounds that it is excepted

from disclosure under section 552.104. [11]

Boeing asserts

that the plain language of the exception protects any information that  would give advantage to a

competitor or bidder 

and, since the government has no competitors, the exception can only reasonably

be construed as protecting private parties.

While it may be true, at least to some degree, that the government is

not a competitor or a bidder, it does not follow that the government has no

interest in protecting competitive bidding on government contracts. While a disclosed bid might certainly give a

bidder unfair advantage, i.e., the opportunity to underbid, the government has

an interest in maintaining the integrity of the bidding process, which is

furthered by section 152.104. See,

e.g. , Orion Research, Inc. v. EPA , 615 F.2d 551, 554 (1st Cir. 1980)

(holding that disclosure of bid to competitor under Freedom of Information Act

would have  chilling

effect 

on willingness of potential bidders to submit bids in future). In any event, regardless of any private

interest in protecting the material, the broad interpretation urged by Boeing

ignores the import of section 552.007. See

City of Dallas , 304 S.W.3d at 384 (  We

presume that the Legislature intended all provisions of a statute to be

effective, and that it intended a just and reasonable result.  ); see also Birnbaum , 994

S.W.2d at 776 (rejecting interpretation that PIA section 552.007 prohibits release

of public information in which there is third-party property or privacy

interest). Based on the plain language

of the statute as a whole, the PIA cannot reasonably be interpreted in a manner

that would permit Boeing to prohibit disclosure of the Lease information.

Boeing cites

several federal cases for the proposition that, under an analogous provision in

the Freedom of Information Act (FOIA), federal courts have prohibited the

disclosure of similar information.

See Canadian Commercial Corp. v. Dep  t of the Air Force , 514 F.3d

37, 39 (D.C. Cir. 2008) (holding line-item pricing information in government

contract was exempt from disclosure); McDonnell Douglas Corp. v. Dep  t

of the Air Force , 375 F.3d 1182, 1194 (D.C. Cir. 2004) (same); McDonnell

Douglas Corp. v. NASA , 180 F.3d 303, 305 (D.C. Cir. 1999) (same). Because

the Texas Legislature modeled the PIA after FOIA, federal precedent is

persuasive, particularly where the statutory provisions mirror one another. Texas Comptroller of Pub.

Accounts v. Abbott , ___ S.W.3d ___, No. 08-0172, 2010 Tex. LEXIS 890, at

*16 (Tex. Dec. 3, 2010). However, we do not find the cases cited by Boeing

persuasive for several reasons.

First, the

federal cases cited by Boeing interpret and apply Exemption 4 of FOIA, which

does not mirror section 552.104.

Exemption 4 protects from disclosure  trade

secrets and commercial or financial information obtained from a person and

privileged and confidential 

and therefore is nearly identical to section 552.110 of the PIA, not

section 552.104. 5 U.S.C.A.  552(b )( 4)

(West 2007). Further, these cases do not

support the proposition that a private party may necessarily preclude a

governmental body from disclosing information that is excepted

under the PIA. See Canadian Commercial Corp. , 514 F.3d

at 39 (noting that Trade Secrets Act requires agencies to withhold information

under Exemption 4); McDonnell Douglas Corp ., 375 F.3d at 1185 (  Exemption 4 does not itself

prohibit an agency from disclosing commercial or financial information; it

provides only that an agency is not compelled to disclose such information.  ); McDonnell Douglas Corp. ,

180 F.3d at 305 (noting that if information falls within Exemption 4,  it simply means that the

government is not compelled to disclose it  ). Rather, these cases are consistent with

United States Supreme Court  s

recognition, more than thirty years ago, that Congress  did

not design the FOIA exemptions to be mandatory bars to disclosure. 

Chrysler Corp. v. Brown , 441 U.S. 281, 293

(1979). [12] The Supreme Court unanimously held that a

private party has no right under the FOIA to enjoin agency disclosure of public

information. Id . at 294 (  We conclude that Congress did

not limit an agency  s

discretion to disclose information when it enacted the FOIA. It necessarily follows that the Act does not

afford Chrysler any right to enjoin agency disclosure.  ).

Boeing also

cites two cases from other states, Arkansas and Kentucky, which Boeing asserts

have provisions similar or identical to section 552.104 of the PIA. In Marina Management Services, Inc. v.

Commonwealth of Kentucky , a private party asserted that audited financial

reports submitted to the Kentucky government were prohibited from

disclosure under the Kentucky Open Records Act. 906 S.W.2d

318, 319 (Ky. 1995). The Kentucky

Supreme Court held that the government could not disclose the requested

information. However, the statutory

provision at issue in that case exempted from disclosure  records confidentially disclosed

to it, generally recognized as confidential or proprietary, which if openly

disclosed would permit an unfair commercial advantage to competitors of the

entity that disclosed the records.  Ky. Rev. Stat. Ann.  61.878(1 )( c)(1) (LexisNexis 2011).

This provision is analogous to section 552.110 of the PIA, not section

552.104. Further, the Kentucky court

held that the records at issue were deemed confidential. Id . The issue before this Court is whether a

private party may assert section 552.104 in the absence of a finding that the

information is confidential under law. We do not find this Kentucky

case instructive on this issue.

Similarly, the

Arkansas Supreme Court held that a proposal for a contract with

the Arkansas Department of Finance and Administration was excepted from disclosure under the Arkansas Freedom of

Information Act. Arkansas

Dep  t

of Fin. & Admin. v. Pharmacy Assocs ., 970 S.W.2d 217, 221 (Ark.

1998). While the provision in that case

is identical to section 552.104, the issue in the case was whether the state

agency, not a private party, could claim the exception. See id. at 218 (  The

question in this case is whether a state agency can claim the

competitive-advantage exception under the Arkansas Freedom of Information Act .

. . on behalf of the person who supplied the information.  ). Further, the information requested was bid

information submitted for purposes of obtaining a government contract. Id . at 220. The

court noted that the contract is re‑bid every two years and competitors

could use the information to improve their competitive position. Id .

That concern is not applicable in this case.

Boeing  s assertion that the Port is

prohibited from releasing information that falls within the scope of Section

552.104 is contrary to the plain reading of the statute as whole. Under the plain language of the PIA, section

552.104 is a discretionary exception, which may be waived by the governmental

body unless disclosure is  prohibited

by law 

or the information is  confidential

under law.  In this case, there are no trial court

findings that would support the conclusion that disclosure of the Lease

information is  prohibited

by law 

or that the Lease information is  confidential

under law, 

nor is there any evidence that would support such findings.

Accordingly, we

hold that the trial court did not err in concluding that Boeing does not have

standing to assert section 552.104 to prohibit the Port from disclosing the

Lease information. We overrule Boeing  s

second issue on appeal. In light of this

holding, we do not address Boeing  s

third issue, whether the Lease information falls within the scope of section

552.104. See Tex. R. App. P. 47.1

(courts of appeal must hand down opinions that are as brief as possible while

addressing those issues necessary to final disposition of appeal).

CONCLUSION

Because the

trial court did not err in concluding that the Lease information must be disclosed

under section 552.022(a )( 3), we affirm the trial court  s

judgment.

__________________________________________

Diane M.

Henson, Justice

Before Chief Justice Jones, Justices Pemberton and

Henson;

Concurring

Opinion by Justice Pemberton

Affirmed

Filed:

March 9, 2012

[1] The background facts are based

on the undisputed testimony and exhibits from the trial on the merits.

[2] Boeing asserts that Silvas

is a disgruntled former employee. Even

if true, this information is irrelevant; the PIA prohibits inquiry into the

motives of the party requesting the release of information. See Tex. Gov  t Code Ann.  552.222 (West Supp. 2010); A&T

Consultants v. Sharp , 904 S.W.2d 668, 676 (Tex. 1995) (noting that the PIA precludes

factual inquiry into requesting party  s

intentions).

[3] Upon

review of the Lease information by the United States Department of Homeland

Security, the parties have stipulated that portions of the Lease information

are confidential under the Critical Infrastructure Information Act of

2002. 6 U.S.C.A.   131-134 (West 2007). Accordingly, those portions of the Lease have

been redacted and are not at issue in this case.

[4] Boeing sent written notice of the suit to Silvas , as required by the PIA. See Tex. Gov  t Code Ann.  552.325(a), (b) (West Supp.

2010). Though entitled to do so, Silvas did not intervene in the suit. See id .

[5] At trial, Boeing also raised sections 552.101

and 552.110. See Tex. Gov  t

Code Ann.   552.101

(excepting from disclosure information considered to be confidential by law),

.110 (West 2004) (excepting from disclosure trade secrets and commercial and

financial information that would cause substantial competitive harm). Boeing has not raised these grounds on

appeal. See Tex. R. App. P. 38.1( i ) (requiring appellant  s

brief to state concisely all issues or points presented for review).

[6] While the parties present their arguments in

terms of standing, we consider those arguments in the context of whether Boeing

has a statutory right to the relief it seeks.

See Dubai Petroleum Co. v. Kazi , 12

S.W.3d 71, 76 (Tex. 2000) (  The

right of a plaintiff to maintain a suit, while frequently treated as going to

the question of jurisdiction, has been said to go in reality to the right of the

plaintiff to relief rather than to the jurisdiction of the court to afford it.  ( citing

21 C.J.S. Courts 

16, at 23 (1990)).

[7]

Section 552.110 excepts from disclosure (1) a trade

secret obtained from a person and privileged or confidential by statute or

judicial decision and (2) commercial or financial information for which it is

demonstrated based on specific factual evidence that disclosure would cause

substantial competitive harm to the person from whom the information was

obtained. Tex. Gov  t Code Ann.  552.110 (West 2004).

[8] The attorney general suggests that section

552.110 of the PIA may be asserted by a private party to prohibit

disclosure. See, e.g. , Tex.

Att  y

Gen. OR1990-552, 2 (noting that PIA exception protecting trade secrets and

certain financial information in section 3(a)(10), now section 552.110,

protects third-party interests); Tex. Att  y Gen. OR1988-514, 2-3 (noting

that same PIA exception parallels exemption 4 of Freedom of Information Act and

protects third-party interests). This

Court has previously recognized that information that is  a trade secret or confidential

or privileged information under section 552.110 

would be prohibited from disclosure under section 552.007. See Tex. Gov  t Code Ann.  552.007 (West 2004)

(prohibiting disclosure of information when  prohibited

by law or the information is confidential under law  );

Birnbaum v. Alliance of Am. Insurers , 994 S.W.2d 766, 776 (Tex. App .  Austin

1999, pet. denied). However, although

Boeing asserts that the Lease information is a trade secret, Boeing has not

otherwise raised section 552.110 on appeal.

Further, the trial court  s

factual findings would not support the application of section 552.110 in this

case. Specifically, the court found that the Lease information is not a trade

secret and that disclosure of the Lease information would not cause substantial

competitive harm to Boeing. See Tex. Gov  t Code Ann.  552.110.

[9] However, if the information is considered

core public information under section 522.022 it must be disclosed unless  expressly confidential under law  other than the PIA. Tex. Gov  t Code Ann.  552.022 (West 2004).

[10] The Port has, in effect, waived the exception

and chosen to release the information, having never asserted at any stage of

this dispute that it wished to withhold it.

See Tex. Gov  t

Code Ann.  

552.301 (providing that governmental body must request determination from

attorney general about whether information it wishes to withhold is excepted from

disclosure under specific exceptions), 552.324 (West Supp. 2010) (providing

that governmental body wishing to withhold information and challenge decision

by attorney general must file suit within thirty days; otherwise, it must

comply with attorney general  s

decision). In fact, the Port, by filing

a general denial, has affirmatively taken the position that Boeing is not

entitled to relief.

[11] Section 552.325 provides that a  governmental body, officer for

public information, or other person or entity that files suit seeking to

withhold information from a requestor may not file suit against the person

requesting the information. 

Tex. Gov  t Code Ann.  552.325 (West Supp. 2010). While this provision acknowledges that a

private party may in certain instances file suit to prevent the disclosure of

information, there is no indication that the legislature in enacting section

552.325 intended to confer a right upon private parties to prohibit disclosure

of public information in cases where the exception asserted otherwise allows

for voluntary disclosure by the governmental body. Instead, this section simply provides that in

those cases in which a party seeks to prohibit disclosure on otherwise

appropriate grounds, such as when a private party asserts that disclosure is  expressly prohibited by law or

the information is confidential under law, 

the requestor may not be named as a defendant in the suit. Id .; see Tex. Gov  t

Code Ann. 

552.007.

[12]

Federal cases brought by private parties claiming exemptions under the Freedom

of Information Act (FOIA), such as the ones cited by Boeing, are procedurally

brought under the Federal Administrative Procedure Act (APA) and challenge the

agency  s

decision to release the information as arbitrary and capricious or not in accordance

with the law under the APA. See, e.g. , United Techs. Corp.

v. U.S. Dep  t

of Defense , 601 F.3d 557, 562 (D.C. Cir. 2010).