Untitled Texas Attorney General Opinion

-’ OFFICE OF THE ATTORNEY GEKERAL . STATE OF TEXAS
JOHN CORNYN

October 4,2002

The Honorable Steven D. Wolens Opinion No. JC-0560
Chair, House Committee on State Affairs
Texas House of Representatives Re: Whether the Public Information Act provides
P.O. Box 2910 for sanctions against an electricity market
Austin, Texas 78768-29 10 participant for filing with the Office of the
Attorney General groundless claims of
confidentiality as to its records held by the Public
Utility Commission that are requested under the
Act (RQ-0536-JC)

Dear Representative Wolens:

Pursuant to the Texas Public Information Act, TEX. GOV’T CODEANN. ch. 552 (Vernon 1994
& Supp. 2002) (the “Act”), you asked the Texas Public Utility Commission (the “PUC”) for
information in a PUC study on possible manipulation of the wholesale electricity market by six
participants in the market.’ In connection with this matter, you state that some of the information
submitted to this office for review under the Act appears to be in the public domain, and you ask
whether the Act provides sanctions against an electricity market participant for filing groundless and
frivolous claims of confidentiality with the Office of the Attorney General solely to impede public
disclosure of such information. See Request Letter, supra note 1, at 7. The Act does not provide
sanctions against a third party for filing “groundless and frivolous claims of confidentiality solely
to impede public disclosure of. . . information.” See TEX. GOV’T CODEANN. ch. 552 , subchs. H-I
(Vernon 1994 & Supp. 2002) (p roviding respectively for civil and criminal enforcement); Request
Letter, supra note 1, at 7.

The PUC study looked into possible manipulation of the recently restructured wholesale
electricity market within the Electric Reliability Council of Texas (“ERCOT”). With the exception
of certain utilities operating in outlying regions of the state, most of Texas’ electric utilities have
voluntarily interconnected their transmission systems, forming a single main power grid known as
the Electric Reliability Council of Texas, or “ERCOT.” See Pub. Util. Comm iz ofTex. v. City Pub.
Serv. Bd., 53 S.W.3d 310, 312 (Tex. 2001); ERCOT web site, available at
http://www.ercot.com/AboutERCOT/ (last visited July 19,2002). The ERCOT grid covers most of
the geographic area of the state. See Pub. Util. Comm’n, 53 S.W.3d at 312;

‘Letter from Honorable Steven Wolens, Chairman, House Committee on State Affairs, Texas House of
Representatives, to Honorable John Corny-n, Texas Attorney General (Apr. 10,2002) (on file with Opinion Committee)
[hereinafter Request Letter].
The Honorable Steven D. Wolens - Page 2 (JC-0560)

http://www.ercot.corn/AboutERCOT/Operations/Index.htm (last visited July 19,2002). ERCOT is
also the nonprofit corporation that administers the transmission of electricity over this main
interconnected grid. See TEX. UTIL. CODE ANN. 8 39.151 (Vernon Supp. 2002);
http://www.ercot.com/AboutERCOT/Overview.htm (last visited July 19, 2002). ERCOT
administers a system of balancing charges and payments to help prevent congestion over
the grid. See Request Letter, supra note 1, at 1; see also Public Utility Comrnission of
Texas, Project No. 25755, Workshop May 1, 2002, Revised Agenda, available at
http://www.puc.state.tx.us/electric/proiects/25755/050 102agenda (last visited July 9,2002). Market
participants received payments for decreasing their electricity generation when the transmission
system was congested, and the study considered whether certain market participants that received
large payments had overstated their proposed electricity production. See Request Letter, supra
note 1, at 1.

In responding to your request, the PUC withheld certain information that you believed to be
public, such as the names of the market participants identified in the report as possibly manipulating
the wholesale market. See id. at 2. The PUC indicated that it could not release those names as long
as the market participants’ claims of confidentiality remained unresolved. See id. We understand
that the names were released, as was certain other information, and that the rest of the information
was addressed by this office in an Open Records Letter. See Open Records Letter No. OR2002-3094
(2002).

We consider whether the Public Information Act provides for sanctions against an electricity
market participant for filing groundless and frivolous claims of confidentiality solely to impede
public disclosure of information. In addressing your question, we express no opinion as to whether
any claim of confidentiality is groundless and frivolous. Whether a claim of confidentiality is made
in good faith, or is groundless, frivolous, and made solely to delay disclosure of public information,
involves questions of fact that cannot be resolved in an opinion of this office. See, e.g., Tex. Att’y
Gen. Op. Nos. JC-0328 (2001) at 6, JC-0285 (2000) at 5, n.2.

The information that you requested from the PUC concerned certain electricity market
participants. The Public Information Act includes a procedure whereby third parties, such as the
electricity market participants in this case, may protect their privacy or property interests in records
that are in the custody of a governmental body. If information is requested under the Act “and a
person’s privacy or property interests may be involved,” including an interest in a trade secret or
commercial or financial information as defined by section 552.110 of the Government Code, “a
governmental body may decline to release the information for the purpose of requesting an attorney
general decision.” TEX. GOV’T CODEANN. 6 552.305(a) (Vernon Supp. 2002). A person whose
interests may be involved in the information, or any other person, “may submit in writing to the
attorney general the person’s reasons why the information should be withheld or released,” and
“[tlhe governmental body may, but is not required to, submit its reasons why the information should
be withheld or released.” Id. fj 552.305(b)-(c).

Subchapter H of Government Code chapter 552 provides for civil enforcement of the Public
Information Act and subchapter I provides for criminal enforcement. See id. f$j 552.321-.323,
The Honorable Steven D. Wolens - Page 3 (JC-0560)

.35 l-.353. The judicial proceedings authorized by these provisions will ordinarily include a decision
as to the validity of claims that information is confidential, but these provisions do not authorize
sanctions for a frivolous or unfounded claim that information is excepted Tom disclosure to the
public. See id. $5 552.321 (Vernon 1994 & Supp. 2002) (suit for writ of mandamus compelling a
governmental body to make information available for public inspection); .3215 (Vernon Supp. 2002)
(suit for declaratory judgment or injunctive relief against governmental body by person who claims
to be the victim of a violation of the Act); .324 (Vernon Supp. 2002) (suit by a governmental body
challenging a decision by attorney general); .352 (Vernon 1994) (criminal offense of distributing
confidential information); .353 (Vernon 1994 & Supp. 2002) (criminal offense of failure to provide
access to or copying of public information).

An attorney fee provision does require a court to consider the good faith of an officer who
seeks to withhold information requested under the Act. In an action brought by an officer for public
information under section 552.353(b)(3) to seek relief from compliance with a decision of the
attorney general that information is public, “the court may assess costs of litigation and reasonable
attorney’s fees incurred by a plaintiff or defendant who substantially prevails.” Id. tj 552.323(b)
(Vernon Supp. 2002). “In exercising its discretion under this subsection, the court shall consider
whether the conduct of the officer for public information of the governmental body had a reasonable
basis in law and whether the litigation was brought in good faith.” Id. A finding that the officer
made groundless and frivolous claims of confidentiality would certainly be relevant to the court’s
decision about attorney fees.

The Act does not provide any administrative sanctions against a third party that files
groundless and frivolous claims of confidentiality with the Office of the Attorney General to delay
the public disclosure of information. In contrast, certain administrative agencies have express
authority to sanction a party for raising a frivolous or groundless claim in other contexts. The Texas
Ethics Commission has authority to hear and render decisions on sworn complaints filed by an
individual and alleging that a person has violated a rule adopted by or a law administered and
enforced by the commission, and it “may impose a civil penalty of not more that $10,000 for the
filing of a frivolous or bad-faith complaint.” Id. 8 571.176(a) (Vernon 1994); see id. $9 571.121-
.122. A “frivolous complaint” is “a complaint that is groundless and brought in bad faith or is
groundless and brought for the purpose of harassment.” Id. 8 571.176(a). An administrative law
judge employed by the State Office of Administrative Hearings (“SOAH”) may issue orders
imposing sanctions. See id. 8 2003.042(a)(4) (V emon Supp. 2002). A SOAH judge “after notice
and an opportunity for a hearing, may impose appropriate sanctions . . . against a party or its
representative” for filing a motion or pleading that is groundless and brought in bad faith, for the
purpose of harassment, or for any other improper purpose, such as to cause unnecessary delay or
needless increase in the cost of the proceeding. Id. 9 2003.0421 (a) (Vernon 2000). See id. 5
2003.0421(b) ( sanctions that may be imposed); see also TEX. LAB. CODEANN. f~402.092(a), (e)
(Vernon 1996) (information in Workers’ Compensation Commission investigation files is
confidential, but, commission, upon request, shall disclose identity of complainant if it finds the
complaint was among other things groundless or frivolous). The legislature has thus expressly
authorized certain administrative agencies to impose sanctions on a party that makes a frivolous and
unfounded claim in connection with specific matters under the agency’s jurisdiction.
The Honorable Steven D. Wolens - Page 4 (JC-0560)

However, the Public Information Act is silent as to such sanctions in the context of open
records determinations. The legislature has not authorized any agency, including the Office of the
Attorney General, to impose sanctions on a third party for filing “groundless and frivolous claims
of confidentiality solely to impede public disclosure of information” under the Act. Accordingly,
the Act does not provide for the sanctions you inquire about.

SUMMARY

The legislature has not authorized any agency, including the
Office of the Attorney General, to impose sanctions pursuant to the
Public Information Act on a third party for filing “groundless and
frivolous claims of confidentiality solely to impede public disclosure
of information.”

etc
V truly your ,

U-L
” T
JOfiN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee