Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court

No. 12-1007
TAMES

THE BOEING COMPANY AND THE GREATER KELLY DEVELOPMENT AUTHORITY N/K/A THE PORT AUTHORITY OF SAN ANTONIO v. KEN PAXTON, ATTORNEY GENERAL OF TEXAS

Oral argument was held on February 26, 2015. The Court issued an opinion resolving the case on June 19, 2015. File Closed

In the news...

Tracking 1 article about this case.

September 25, 2015

Texas Supreme Court Ruling Shields Contract Details

from Texas Tribune

The Court has issued opinions:

Opinions

June 19, 2015

Devine
Hecht
Green
Willett
Guzman
Lehrmann
Brown

Justice Devine delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Willett, Justice Guzman, Justice Lehrmann, and Justice Brown joined. PDF

Boyd

Justice Boyd delivered a dissenting opinion.View Electronic Briefs | Oral Argument | Video PDF

 

Court of Appeals

Appellate District:3rd Court of Appeals
Outcome Below:Affirmed
COA Docket No.:03-10-00411-CV
Opinion Author:Honorable Diane M. Henson

Trial Court

Trial Court:345th District Court
County:Travis
Trial Judge:Honorable John K. Dietz
Trial Docket:D-1-GN-05-004504

Entries on SCOTX Orders Lists

Docket Entries

Date Event Outcome  
2015-08-20 Case Stored  
2015-07-30 Mandate issued  
2015-06-19 Dissenting opinion issued.   Issued
2015-06-19 Opinion issued Issued
2015-06-19 Opinion issued   Court of Appeals' judgment reversed & judgment rendered
2015-06-19 Court approved judgment sent to attorneys of record Issued
  This case was awaiting the Court's decision after oral argument between February 26, 2015 and June 19, 2015.  
2015-02-26 Oral argument  
2015-02-26 Oral argument  
2015-01-30 Letter sent to parties from Supreme Court - See Remarks  
2014-12-29 Letter brief  
2014-12-16 Oral Argument Submission Form from Attorney received  
2014-12-16 Oral Argument Submission Form from Attorney received  
2014-11-21 Petition for Review disposed Filing granted
2014-11-21 Petition for Review disposed Filing granted
2014-11-21 Petition for Review granted
2014-11-21 Petition for Review granted
2014-11-21 Case set for oral argument   Case set for oral argument
2014-11-21 Case set for oral argument   Case set for oral argument
  This case was pending on merits briefs between February 27, 2014 and November 21, 2014.  
2014-02-27 Reply Brief  
2014-02-27 Reply Brief  
2014-02-04 Motion for Extension of Time disposed.   Filing granted
2014-02-03 Motion for Extension of Time to File Brief filed  
2014-01-27 Motion for Extension of Time disposed.   Filing granted
2014-01-24 Motion for Extension of Time to File Brief filed  
2014-01-22 Motion for Extension of Time disposed.   Filing granted
2014-01-22 Motion for Extension of Time to File Brief filed  
2014-01-20 Notice received  
2014-01-13 Brief on the Merits (Respondent)  
2014-01-13 Brief on the Merits (Respondent)  
2013-12-03 Motion for Extension of Time disposed.   Filing granted
2013-12-02 Notice of Appearance  
2013-12-02 Motion for Extension of Time to File Brief filed  
2013-11-01 Motion for Extension of Time disposed.   Filing granted
2013-11-01 Motion for Extension of Time to File Brief filed  
2013-10-23 Brief on the Merits  
2013-10-23 Brief on the Merits  
2013-09-19 Motion for Extension of Time disposed.   Filing granted
2013-09-19 Motion for Extension of Time to File Brief filed  
2013-09-12 Motion for Extension of Time disposed.   Filing granted
2013-09-12 Motion for Extension of Time to File Brief filed  
2013-09-05 Notice from attorney regarding vacation dates  
2013-08-28 Case Record Filed  
2013-08-27 Record Requested in Petition for Review
2013-08-23 Brief on the Merits Requested  
  This case was waiting for a decision about briefing or a possible grant between July 3, 2013 and August 23, 2013.  
2013-07-03 Reply to Response  
2013-07-03 Letter Filed  
2013-06-18 MET to file reply disposed of   Filing granted
2013-06-17 Motion to Extend Time to File Reply filed  
2013-06-17 Letter Filed  
2013-06-13 MET to file reply disposed of   Filing granted
2013-06-13 Motion to Extend Time to File Reply filed  
2013-06-03 Response to Petition (Respondent)  
2013-06-03 Response to Petition (Respondent)  
2013-05-03 Motion for Extension of Time to File Response disposed   Filing granted
2013-05-03 Motion for Extension of Time to File Response  
2013-04-12 Supreme Court of Texas Requested Response  
2013-03-12 Case forwarded to Court
2013-03-12 Case forwarded to Court
2013-03-01 Response Waiver filed  
2013-03-01 Response Waiver filed  
2013-02-04 Petition for Review #2 (Petitioner)  
2013-02-01 Petition for Review (Petitioner)  
2013-01-11 Motion for Extension of Time to File Petition for Review disposed   Filing granted
2013-01-11 Motion for Extension of Time to File Petition for Review filed  
2012-12-21 Motion for Extension of Time to File Petition for Review disposed   Filing granted
2012-12-14 Motion for Extension of Time to File Petition for Review filed  

Parties

Party Counsel Role
Abbott, Greg
Ms. Nichole Beth Bunker-Henderson
Mr. David A. Talbot Jr.
Attorney General Greg W. Abbott
Mr. David C. Mattax
Mr. Daniel T. Hodge
Ms. Kimberly L. Fuchs
Ms. Rosalind L. Hunt
Mr. Richard B. Farrer
Mr. Jonathan F. Mitchell
Respondent
The Boeing Company
Mr. Thomas W. Taylor
Ms. Kathryn Elizabeth Boatman
Mr. Scott A. Brister
Mr. Kendall M. Gray
Petitioner
The Greater Kelly Development Authority
Mr. William A. Faulk
Mr. Dalby Fleming
Ms. Lea Ann Ream
Mr. Dylan O. Drummond
Petitioner
 

Who can object to release of business-sensitive contract details under the Texas public-information act?

The question was whether a business can object to the government releasing information under the Public Information Act “that, if released, would give advantage to a competitor or bidder.” Tex. Gov't Code §552.104.

Here, the business was Boeing, which had a government contract related to Kelly Air Force Base. That contract, in turn, contained some terms reflecting details of Boeing's internal cost structure. When a former government employee filed an open-records request for the contract, the Attorney General agreed to release it. Boeing filed suit to stop the release, arguing that certain specific financial terms should be redacted so they would not aid its competitors in bidding for other aerospace projects.

The Court divided 7-1 on the judgment, but agreed 8-0 that Boeing was a proper party to raise this sort of objection.

The Attorney General had argued that this "competitor or bidder" exception only inured to the benefit of the government, thus permitting the government to waive objections to the release. Boeing argued that the statute was also meant to protect third parties whose private information might be disclosed. All of the Justices agreed with Boeing on this point.1

The majority held that, not only was Boeing a proper party to raise this sort of objection, but that it had conclusively established its right to block the release of this information. "No reasonable trier of fact could conclude that Boeing has no competitors, that the Defense Department won’t re-bid its contracts, or that the physical plant is not the biggest variable cost in such bids. The undisputed evidence allows only a single logical inference—that the information at issue 'if released would give advantage to a competitor or bidder.'" The Court thus held that the information was exempt from disclosure and should not be released.

Justice Boyd's dissent would have held that Boeing, although a proper party to raise this objection, had failed to present conclusive proof that the release of the information "would give advantage to a competitor or bidder," not merely that it was theoretically possible. More specifically, the dissent would have required that a party seeking to invoke this exception "must at least establish the existence of a specific competitor with whom the party is currently or will soon be engaged in a particular competition, and how the information would, in fact, give the competitor an advantage in that particular competition." Finding that evidence of harm lacking, Justice Boyd would have ordered the information released.


  1. Both the majority and concurrence also shared another feature: express reliance on the concurring opinion that Justice Pemberton filed in the court of appeals. That concurrence was quoted multiple times in Justice Devine's majority, which adopted its statutory analysis. And Justice Boyd's dissent opens by saying, "Essentially for the reasons expressed in the court of appeals’ concurring opinion, ... I dissent." 

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