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Office of (ieneral Corinsel

Mav 28" 2008

Mr. Gregory T. Simpson, Chief

Open Records Division
Office of the Attorney General
P.O. Box 12548
Austin. TX 7871l-2548

RE: Request for Ruling regarding Public Information Request from Craig Johnson
Correspondence ID #317083

Dear Mr. Simpson:

On May 20, 2008, we submitted a request for an open records decision regarding the
public information request enclosed as Exhibit A. The request, submitted by Craig Johnson, was
received May 6, 2008, by Texas A&M University and the matter has been assigned ID No.
317083 by your offlce.' Mr. Johnson seeks the following information:

I) [TJhe Local Survey Results that the Public Policy Reseqrch Institute, in conjtmction
with the Texas Department of State Health Services (DSHS), produced for each
school district participating in the Texas School Survey of Drug and Alcohol Use for
the surveyyears 2000, 2002, 2001 and 2A06. The requested informotion includes all
General Substance Tables detailing the we of tobacco, alcohol, illicit drugs, ctnd
inhalants among the local student populatian, and ones lhat illustrate environmental
ond behovioral factors related to substance use. Also includes Prevalence Tables that
compare substance use by'sex, ethnicity, qccdemic pedormance, and other studenl
characteristics.

2. .
[AJIso . . the row data for Texas Schaol Surt'ey of Drug and Alcohol Use for
survey years 2000, 2002, 20A4, cmd 2006.

At the time we sent you our initial correspondence, the university and this office were in
the process of gathering and reviewing records that respond to Mr. Johnson's request. We have
subsequently reviewed the requested records and have also researched background information
related to the working relationship between Texas A&M University's Public Policy Institute
(PPRI) and the Texas Department of State Health Services (DSHS) regarding the Texas School
Survey. lt is the university's position that the requested information may be third parry proprietary
information and as such, is subject to exception from public disclosure by the university under

t
Please note that this correspondence is submitted tirnely. Texas A&M University offices were ofircially
closed May 26, 2008 in observance of Memorial Day by order of the Board of Regents of The Texas
A&M University System. The Board's authoriry derives from the J'exas Education Code, Section 85.21.
Consequently, the 15'o business day after the receipt of Mr. Johnson's request is today, May 28, 2008.

20{) Technology'!7a.1,, Suite 207?' {ioliege St:ition, Texas77B4i-3424

97L).4i8.6120 . 979.4iE.6150 iax . ':vwrv.t;tttlus.edu
Mr. Gregory T. Simpson
May 28, 2008
Page 2 of6

section 552-110 of the Texas Pubtic Information Act. The universify further asserts that the
information requested under Item 2 (which seeks the raw data prepared by PPRI for the project)
is excepted from disclosure under section 552.101 of the Act in conjunction with section 51.914
of the Texas Education Code. Accordingly, we seek a ruling from your office regarding this
information.

The Public Policy Research Institute was established by a special item appropriation of o
Texas A&M University during fiscai year 1983 to provide scientific researcir and statistical
evaluation service.s to both public and private sponsors including various federal. regionai, state,
and community agencies actively engaged in determining public policy. The Institute is
administered by the university's College of Liberal Arts and staffed by faculty members and
graduate students. Among the federal agencies for u'hich PPRI perfomrs public policy survey
research and statistical analysis are the Centers for Disease Control, Department of Education,
National Science Foundation, Nationai Institutes of Health and the Department of Health and
Human Services.

State entities utiiizing PPRI statistical research services include DSHS as well as the
Offrce of the Attorney Generai, the Center for Birth Defects Research and Prevention, the
Children's Trust Fund of Texas, Education Service Centers" the Legislative Budget Board, , the
Texas Workforce Comrnission, the Comptroller of Public Accounts, the Texas Education
Agency, the Texas Higher Education Coordinating Board, the Texas Legislature. the Offrce of
the Secretary of State and the Texas Department of State Health Services. In addition, PPRI
also conducts statistical research for private entities such as I{afte Flanks Conrmunications and
the Texas Chapter: of American Clancer Society. At present, research activities at PPRI are
focused on five program areas of regional, state, and national significance: government policy,
education policy analysis, pubiic health policy. substance abuse prevention, and innovation and
technology transfer.

Mr.Johnson, the requestor, is seeking copies of records related to The Texas School
Survey of Drug and Alcohol Use for the years 2A00,2AA2,2004, and 2006. The survey, which is
conducted every two years in a sample of sclrool districts throughout the state. is sponsored by
DSFIS and is implemented by Texas A&M lJniversity's PPRI to infbmr policymakers about the
extent and nature of the substance use problem in Texas schools. It also gives school districts
cotducting local surveys a standard of comparison lbr interpreting their own drug and alcohol
survey findings. The project has been earried out Bnder the terms set forth in biennial
interagency contracts betneen DSHS and the university. Copies of the coiltracts from each of
rhe years requested by Mr. .Iolurson are enclosed as Exhibits B-1, B-2, B-3, and B-4,r

' The parties to the agreement related to the 2006 Texas School Survey (Exhibit B-l) are DSHS and Texas A&M
University, However, the parties to the 2004 and 2002 agrcements (respectively Exhibits B-2 and B-3) were the
Texas Commission on Alcohol and Drug Abuse (TCADA) and the University. In 2000, TCADA contracted for the
project with the Texas Engineering Experiment Station, a Texas A&M University System agency that also utilizes
PPRI. In 2004. TCADA became a division of DSHS.
Mr. Gregory T. SimPson
May 28, 2A08
Page 3 of6
the tlirection of DSHS (of previously
These agreements set forth that PPRI works under
TCADA) for hire and specifv that PPRI's 'vorL p'oduct 1nd-o1le1$::::"li::: n*-o3:?*'',::
ror are
;*?*H;ft;il"\#"';;;; ir'-i irl" rinai statewide rexash School Suwev Reportsqhtm
- - ^ ^-^+Y).--^^*^t-Q+..Xicc
published on the DSHS q'ebsite at http://
Johnson' The
Enclosed as Exhibit is a cD containing the information requested bI Yt'
c
2 and the remaining four
first four folders on the CD corrtain the raw .1# ,equ"sted
under Item
folders contain the local school district sutveY ,*'uit'
sought under ltem 1' The survey results
ppRt p*rsuant to the terms of the Interagency
are the finished work product of conducted
used b-v PPRI to produce the suruey
Contracts rru-ith DSHS, The rarv data is the methodology
agreements' the surveY resuits
results. The universrty asse*s that under terms of tlre interagency
we seek a ruling whether the information is
requested under item'1 belong to DSHS. Accordingly,
subject to exception tiom disclosufe as confidential
thira party proprietary information under section
SSd.t tO of the Texas P'blic Information Act.
The Act provides:

and a person's
(a) In a case in which information is requested under this chapter
privaryorpropertyinterestsmaybeinvolved,includingacaseundersectionto
may decline
552.1{il, SjZ.iO+,'552.110 or 552.114, a governmental body
release the information for the purpose of requesting
an attorney general

decision.
(a), or any other
(b) a person whose interests may be involved under subsection
that person's reasons why
person, may submit in writing to the attorney general
ih" infot*ution should be withheld or released'
its reasons why the
(c) the governmental body may, but is not required to, submit
information should be withheld or released'
under
(d) If release of a person's proprietary information may be subject to exception
body that
section 552.Ibi, isz.iro, 552.113, or 552,131, the governmental
under Section 552-301 shall make a good
requests un utto-*y g"n*rul decision
person ofthe request for the attorney general decision'
faith attempt,"
""tify"tfrat
Notice under this subsection must:
than the
(1) be in writing and sent rvithin a reasonable time not later
l0th business day after the date the govemmental body receives
the request for the information; and
(2) include:
(A) a copy of the written request for the information' if
any, received by the governmental body; and
(B) a statem*ni, in tf,e form prescribed by the attomey general'
that the person is entitled to submit in writing to the attorney
generalwithinareasonabletimenotlaterthanthelOthbusiness
Iay after the date the person receives the notice;
(i) each reason the person has as to why the information
should be withheld; and
Mr. Gregory T. Simpson
Moy 28. 2008
Page 4 of 6

(ii) a letter, memorandum, or brief in support of that

feason,

(e) A person who submits a letter, memorandum, or brief to the attorney general
under Subsection (d) shall send a copy of that letter, memorandum, or brief to
the person who requested the information fiom the governmental body' lf the
letter, memorandum, or brief submitted to the attomey general contains the
substance of the information requested, the copy of the letter, memorandum, or
brief maY be a redacted coPY.

TEx. Gov't CoDE, $552.305 (Vernon 2008)

agency
We are sending the notice letter prescribed by the attorney general to DSHS to advise the
of its right to object toihe release of matirials containing proprietary information. A copy of this letter is
enclosed as Exhibit D. It is our position that the university bears a contractual obligation
to withhold the
at the discretion
local survey results from disclosure and that the information requested should be released
of DSHS.

We also assefi that the information responsive to Mr. Johnson's request for PPRI's raw data is
protected from disclosure under section 552.1d1 of the Act, in conjunction with section 51.914 of the
Texas Education Code. The Office of the Attorney General has previously held that
research data
produced by University faculty pursuant to a contract between the universitlz and a third party constitutes
public infoimation rubi".t to disclosure unless it is specifically excepted under a provision of the AcL
TEX. ATT'Y GEN. OnO-651 (1997). Section 552.101 provides that "information is excepted from the
requirements of Section 552^021 if it is information considered to be confidential by law, either
constitutional, statutory, or by judicial decision." Section 51.914(1) of the Education Code provides:

In order to protect the astual or potential value, the following information shall be
confidential and shall not be subject to disclosure under Chapter 552, Government Code,
or otherwise:

(l) all information relating to a product, device, or process, the application

or us€ of such a product, device, or process, and all technological and scientific
information (including computer programs) developed in whole or in pa:t at a
state institution of higher education, regardless of whether patentable or capable
of being registered und"r copy.ight or trademark laws, that have a potential for
being sold, lraded or licensed for a fee.

TEX. EDUc. CoDE, $51.914 (Vernon 2008)

We believe that this section is applicable in the raw data requested by Mr. Johnson as it
is clearly
that has been developia in whole or in part at an institution of higher education' The
scientific research
data also has the potential for being sold, traded, or licensed for a fee, In ORD-65 1, the Attorney General
addressed a similar request made of researchers within an institution of higher
education. The University
of Texas at Austin rLceived a request for various data related to research on the Barton Springs
salamander, on a new species oi salamander, and on Benlac and Benomyl' The
university
asserted that part of the research requested identified the DNA sequences of a new species of
Mr. Gregory T. Simpson
May 28, 2048
Page 5 of6

salamander and that research had the potential for being sold, traded, or licensed for a fee.
Additionally, the university asserted that the research on Benlac and Benomyl also had such
potential. The decision stated that whether particular scientific information has the potential for
being sold, traded, or licensed for a fee is a determination for the University to make, and the
Office of Attomey General must assume the correctness of that determination. Therefore, it was
concluded that the information that was determined by the University of Texas to have the
potential for being sold, traded, or licensed for a fee must be withheld frorn disclosure.

We believe that ORD No. 651 is applicable to PPRI's raw data. The information is
scientific as the field of statistics is a mathematical science relating to the c.ollection, analysis,
interpretation and presentation of data. It is used in a wide variety of academic disciplines, *om
the natural and social sciences to_ the humanities, and to government and business. The requested
raw data is PFRI?s unprocessed oip1imar,y data that was developed at a state institution of higher
education and used as a road map to facilitate the processing of the survey results commissioned
by DSHS. Raw data can be input to a computer program or used in manrral analysis procedures
such, as gathering statistics *om a survey. Once captured, this raw data can be processed and
stored as a single format, making it easier for computers and humans to interpret. It has been
demonstrated through the teqns of the agreements with DSHS and TCADA that PPRI has
consistently- received payment for producing the Texas School Survey results these agencies, and
thus has potential for being sold, traded or licensed for a fee. To publicly release PPRI's raw data
would allow others access to PPRI's process and potentially diminish its value in that public
dissemination would reduce, if not eliminui" PPRI'r ability to effectively compete with the private ,""to,
(not being subject to the Act) for research finding.

In summary, the university's position is that the information sought under item 1 of the request
the properlry of the DSHS and may be excepted from disclosure under section 552.110 of the Act.
Ultimately, the DSHS may elect to release the information or argue that it is protected, but pursuant to the
terms of the contracts, the survey results are notthe property of the university" The raw data requested
under Item 2 is documentation of the methodology used by PPRI to produce the survey results
commissioned by DSHS. The raw data is scientific information that was developed at an institution of
higher education that has valus in that it has demonstrated potential of being sold, traded or license for a
fee. The raw data is subject to exception under section 552.101 of the Act in conjunction with section
51.914 of the Education Code.

Thank you for your consideration of this matter. If you have any questions or need
further information, please feel free to contact me.
Sincerely,
{v { #," tpTlL
-j*#/;,A3elly"Kei"rhu
'"Siott
Deputy General Counsel

DRC
Enclosures
Mr. Gregory T. Simpson
May 28, 2008
Page 6 of6

cc: Craig Johnson

Doug McBride
Public Information Coordinator
Communications Department
Texas Department of State Health Services
1100 West 49m Street
Austin. Texas 78756

Mr. Robert T. Bisor, III