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David Short
Investigator/Paralegal
Open Records Division
P.O. Box 12548
Austin, Tx. 78711

Tim Chorney, Publisher
The Llano Ledger
Rt 2 Box 464A
Buchanan Dam, Tx. 78609

November 10, 1999

Re: Submission of Commentary Per Gov't Code Sect.552.304

Dear Mr. Short:

Although not an attorney, it seems to me LMHS is stretching both sections of the Gov't Code used as a defense to disclosure. Regarding Section 552.104, LMHS has merely asserted, but offered no evidence disclosure would indeed provide advantage to any competitor. As suggested to LMHS Administrator Ernie Parisi at an October 13 meeting, the mere fact a study was conducted and a decision made by the LMHS Board to proceed with construction of a new facility in Marble Falls could be enough in itself for any competitor to decide there is in fact reason to expand there themselves. Equally importantly, if the market is as rosy and promising as supposedly determined by LMHS, why hasn't Seton already taken advantage of it? Regarding Section 552.110, how can demographics, easily obtainable by any interested party, be considered "trade secrets"? The statute requires such data be "privileged as confidential by statute or judicial decision". What statute? What "judicial decision"? Where?

While the Administrator is quite correct in his earlier assertion "healthcare is a very competitive endeavor", Mr. Parisi has also apparently and conveniently forgotten LMHS is a public entity and the people have a right to know whether the proposed Marble Falls facility is indeed a sound business move, -- PRIOR to the arrangement of financing and the breaking of ground. While the information requested was indeed expensively obtained for the use of the LMHS Board, it ultimately belongs to we, the people, who "own" LMHS and its facilities. As my readers fully understand, there has been no truly independent study conducted to determine if the proposed Marble Falls facility is indeed a sound business move. By the Administrator's own admission, LMHS has spent a considerable amount of money to have its study conducted. Why should it NOT contain exactly what LMHS expected and already dearly paid for? This is precisely why it's so critical for media to be granted access. Furthermore, the verification audit is NOT an independent study.

The Administrator has been at the very least disingenuous in his approach to this matter. At a meeting on October 13, he reneged on an earlier e-mail agreement to share the data and fully explain the findings of the study. Incredibly, he offered at that time Section 551.085 of the Texas Open Meetings Act as a defense to disclosure. He further pointed out all LMHS business regarding the proposed Marble Falls facility had been conducted in executive session to prevent disclosure. LMHS has deliberately abused, if not violated the Open Meetings as well as Open Records Acts. Since the County Attorney and District Attorney are apparently corrupt, there is no effective remedy. Approaching either would assuredly be a waste of time.

This publication has no interest in publishing the LMHS study. My only interest is to determine if the proposed facility is indeed a wise and warranted move. The taxpayers are certainly entitled to a truly independent assessment. ... That's the function of the media, -- particularly an investigative publication such as this. Mr. Parisi's assertion the study is proprietary and not subject to disclosure is a sham designed to allow the Board to conduct Hospital business in private. The people clearly have a right to know whether their funds are wisely and properly spent. With clever abuse of both Open Records and Open Meetings Acts, LMHS is denying the public this right, at least as far as the proposed facility is concerned. While the Administrator asserts LMHS is acting in good faith, the request for a ruling could indeed be a ruse and convenient stonewalling technique. After all, the Hospital is in the process of quickly arranging financing and expects to complete the task shortly.

Finally, regarding the Open Records Division fax to Fletcher H. Brown of Davis & Wilkerson, a copy of which was sent to me by mail, be advised I have not received a copy of the LMHS written communication to the Attorney General asking for a decision. According to the fax, the statute involved is Gov't Code Sect. 552.301(d). The fax clearly states I should have received this document from LMHS within ten business days of their receipt of the original open records request. This has not happened. Since I have not had the opportunity to see this LMHS document, I respectfully request the right to comment further if necessary upon receipt.

Sincerely,
Tim Chorney, Publisher
The Llano Ledger
http://maxpages.com/llanoledger
cc: File
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David Short
Investigator/Paralegal
Open Records Division
P.O. Box 12548
Austin, Tx. 78711

Tim Chorney, Publisher
The Llano Ledger
Rt 2 Box 464A
Buchanan Dam, Tx. 78609

November 14, 1999

Re: Submission of Commentary Per Gov't Code Sect.552.304

Dear Mr. Short:

This is additional commentary provided per Gov't Code Sect.552.304. The Open Records Division is respectfully reminded this second letter has been necessitated by the failure of LMHS to provide a timely copy of its written communication to the Attorney General asking for a decision. The document was finally received November 10, well after the ten business days allowed by administrative rule.

Mr. Brown's written communication of October 28, 1999 is a five page letter making numerous references to "Exhibits" which this publication has been denied access. How can I adequately or fairly argue against Mr. Brown's assertions without having had the opportunity to examine the documents continually referenced? Respectfully, where is the due process, since the Open Records Division is not acting as my attorney, but in effect as a judging body?

In this administrative process, who indeed fairly represents me, my publication, and most importantly the best interests of the taxpayers who "own" LMHS and the information it is effectively denying the citizens? Sadly, Mr. Brown's five page written communication confirms the assertion in my earlier letter of November 10 alleging LMHS has cleverly abused both the Open Meetings and Open Records Acts in a concerted effort to withhold critical information from the public. This information is assuredly required to adequately assess the wisdom of the proposed Marble Falls facility. More pointedly, this stonewalling has been done prior to the arrangement of financing and the breaking of ground. ... LMHS is fully aware public questioning of the wisdom of the proposed facility will be at best moot after financing is arranged and ground quickly broken. The claim by LMHS that no final decision has been made regarding the proposed facility is also interesting as well as questionable. After all, the Hospital has already expended funds to date in excess of $40,000 for the gathering of information. Why would it reverse course after such expenditure and effort?

Worse yet, the Hospital has admitted to conducting all proposed facility business in executive session. In addition, Mr. Brown has also claimed details of the requested information are known only to "executive staff" and the Board of Directors. Furthermore, none of the requested documents have allegedly ever left any executive session. ... Sounds more like national security precautions, than plans for a new hospital. Such actions at the very least violate the intention and spirit, -- if not the letter of both Open Meetings and Open Records Acts. LMHS cleverness is indeed striking. I respectfully urge the Open Records Division fully consider the prime purpose and spirit of the Texas Open Records Act: Ensuring the right of the people to know.

Sincerely,
Tim Chorney, Publisher
The Llano Ledger
http://maxpages.com/llanoledger
cc: File

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Davis & Wilkerson
Attorneys At Law
P.O. Box 2283
Austin, Tx. 78768

June 12, 2000

Open Records Division
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548

Re: Request for Attorney General Decision regarding Exception from Disclosure

Dear Sir or Madame:

This law firm represents Llano County Memorial Hospital Authority (d/b/a Llano Memorial Healthcare System), created pursuant to Texas Health & Safety Code, Chapter 264. As such, the Llano Memorial Healthcare System is a public entity and subject to the provisions of the Texas Public Information Act as codified in the Texas Gov't Code Ch.552.001 et. seq. The purpose of this letter is to request your decision as to whether or not certain information is excepted from public disclosure pursuant to Ch.552.113 and/or Ch.552.110 of the Texas Public Information Act. Attached to this letter and marked as Exhibit "A" is a copy of the public information request which gives rise to this letter. By way of factual background, Llano County Hospital Authority (the "Authority") has been developing site studies and plans to evaluate the feasibility of constructing and operating an acute care hospital in Marble Falls, Texas. Attached as Exhibit "B" is a copy of the Notice Statement required under Texas Gov't Code Ch.552.305 to the entity whose propriety information is requested.

Because this request for decision is based on two exceptions from disclosure, we will discuss the application of each section below.

Public Information Act Ch.552.110 states in part:

(b)Commmercial 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 is excepted from the requirements of Ch. 552.021.

Open Records Division
June 12, 2000
Page 2

As noted above, attached hereto as Exhibit "A" is the text of the request which has been presented to the Authority. In order to allow you to evaluate this request and the documents it seeks, attached to this letter please find the following documents which the Authority believes are exempt from disclosure:

Exhibit C: confidentiality Agreement together with Preliminary Report of Limited Engineering and Environmental Services dated March 17, 2000 from Law Engineering and Environmental Services, Inc.

Section 552.110 of the Public Information Act excepts trade secrets and commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision.

The determination of whether any particular information is a trade secret under Texas law is a fact question. The Texas Supreme Court has adopted the definition of "trade secret" from the Restatement of Torts section 757, which holds a "trade secret" to be any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers, Hyde Corp. v. Huffines, 314 S.W.2d 763,776 (Tex. 1958). Noting that an exact definition of a trade secret is not possible, the Restatement lists six factors to be considered in determining whether particular information constitutes a trade secret:

1)the extent to which the information is known outside of [the company's] business;

2)the extent to which it is known by employees and others involved in [the company's] business;

3)the extent of measures taken by [the company] to guard the secrecy of the information;

4)the value of the information to [the company] and to [its] competitors;

5)the amount of effort or money expended by [the company] in developing this information;

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

Restatement of Torts section 757, comment b (1939). See also ORD-552.

Public Information Act Ch.552.113 states in part:

Open Records Division
June 12, 2000
Page 3

(a)Information is excepted from the requirements of Section 552.021 if it is:
(2) geological or geophysical information or data, including maps concerning wells ... or
(3) confidential under Subsections (c) through (f)

The information in Exhibit C is geological or geophysical information belonging to a third party. This information was provided to Llano Memorial Healthcare System as confidential information belonging to the J.M. Huber Corporation. The J.M. Huber Corporation provided this information to assist Llano Memorial Healtcare System evaluate the feasibility of a certain tract of land as a site for its acute care hospital. After the J.M. Huber Corporation provided this information the site was determined to no longer be feasible for an acute care hospital. Llano Memorial Healthcare System, based in part on this information, chose not to pursue the purchase of the property discussed in Exhibit C. As such, the tract of land considered by Llano Memorial Healthcare System in the study was not purchased and remains in private ownership with no contractual relationship to any entity subject to the Public Information Act.

Based on the foregoing information and the contents of Exhibit C, Llano Memorial Healthcare System asserts that the documents contained in Exhibit C are exempt from disclosure under Section Ch.552.110 and 552.113 of the Public Information Act.

Thank you in advance for your consideration in this matter. We look forward to receipt of your open records decision in the near future. Until such time, should you have any questions or concerns regarding this request for decision, please feel free to contact either Kevin Reed or myself at (512)482-0614, at your convenience.

Very truly yours,
Fletcher H. Brown
Enclosure
cc: Tim Chorney (w/o encls.)
Frank A. Byrd (w/o encls.)

Publisher's Note: Mr. Brown never forwarded a copy of this exception request. The document was obtained from the Open Records Division. T.C. July 6, 2000