For professional services firms in Texas, such as engineering, architecture, accounting, and legal practices, understanding the Texas Public Information Act (TPIA) is crucial, particularly when interacting with governmental entities. The TPIA promotes transparency by granting public access to government records. However, it also includes specific exceptions to protect sensitive information, which are particularly relevant to professional services firms.
At Fee, Smith & Sharp LLP, our Business and Commercial Litigation Practice Group regularly advises clients on regulatory compliance, risk management, and contractual matters involving state and local governments. We help professional services firms navigate the TPIA landscape to safeguard their proprietary interests and mitigate exposure during competitive procurement and project execution.
Understanding TPIA’s Scope
The TPIA, codified in Chapter 552 of the Texas Government Code, presumes that all information held by governmental bodies is public and must be disclosed upon request unless a specific exception applies. This broad scope means that documents submitted by private firms to governmental entities, such as proposals, contracts, and communications, can become subject to public disclosure.
This is where understanding the Texas Public Information Act and what professional services firms should know becomes especially critical. For instance, if an engineering firm submits a proposal to a state agency, that proposal could be requested by the public under the TPIA. Therefore, firms must be vigilant in identifying and protecting proprietary and confidential information within such documents.
Key Exceptions Protecting Professional Services Firms
While the TPIA favors disclosure, it recognizes the need to protect certain types of sensitive information. Professional services firms should be aware of the following key exceptions:
Trade Secrets and Commercial or Financial Information (Section 552.110)
This exception protects trade secrets and commercial or financial information that, if disclosed, would cause substantial competitive harm to the firm. To invoke this exception, the firm must demonstrate that the information is a trade secret or that its disclosure would result in a significant competitive disadvantage.
Proprietary Information (Section 552.1101)
Under Section 552.1101, information submitted to a governmental body by a vendor or contractor in response to a request for a bid, proposal, or qualification is exempted from disclosure if the firm can demonstrate that release of the information would reveal proprietary methods or processes and give an advantage to a competitor.
Competitive Advantage Exception (Section 552.104)
Originally applicable only to governmental bodies, the Texas Supreme Court’s decision in Boeing Co. v. Paxton extended the competitive advantage exception to private entities. This allows firms to withhold information that, if disclosed, would give a competitor or bidder an advantage.
Steps to Protect Sensitive Information
To safeguard proprietary information under the TPIA, professional services firms should:
- Clearly mark confidential information: Label proprietary sections of documents as “Confidential” or “Proprietary.”
- Submit a timely objection: If notified of a public information request involving your documents, submit written arguments to the Attorney General within 10 business days, identifying the specific exceptions that apply and explaining why they are relevant.
- Provide specific evidence: General claims of confidentiality are insufficient. Firms must provide detailed explanations and, if possible, evidence demonstrating how disclosure would harm their competitive position.
- Consult legal counsel: Engage with our Texas-based attorneys, experienced in TPIA matters, to ensure proper handling of sensitive information and compliance with legal requirements.
Recent Legislative Developments
This year, the Texas Legislature enacted significant reforms to the TPIA, aiming to enhance transparency and accountability in government operations. Rep. Giovanni Capriglione and Sen. Judith Zaffirini authored House Bill 4219, mandating that governmental bodies provide a written response to public information requests, even in cases where no responsive records exist or when records are withheld based on prior attorney general rulings.
This measure addresses concerns that some agencies were neglecting to respond to requests, leaving requestors unclear about the status of their inquiries. Under the new legislation, failure to respond appropriately may result in consequences, including mandatory open government training for responsible employees.
The bill was part of the legislative agenda of the Texas Sunshine Coalition, a bipartisan alliance of 16 organizations committed to promoting government transparency. Advocates, including Kelley Shannon, Executive Director of the Freedom of Information Foundation of Texas, emphasized that this legislation is a crucial step toward ensuring that the TPIA functions as intended, reinforcing the public’s right to access government information.
Governor Greg Abbott has until June 22, 2025, to sign or veto the bill. If signed into law, these changes will have significant implications for professional services firms interacting with governmental entities, as they will benefit from clearer communication and more predictable responses to information requests.
The Role of Legal Counsel
For professional services firms engaging with government entities in Texas, having knowledgeable legal counsel is advisable and essential. The TPIA’s broad presumptions of disclosure, coupled with its detailed and evolving set of exceptions, make compliance and protection of proprietary information a nuanced task. Our experienced business and commercial litigation attorneys can help your firm:
- Pre-screen and flag sensitive materials before submission to governmental bodies.
- Draft clear confidentiality markings and contractual provisions that preserve trade secret protections.
- Respond promptly and effectively if your firm’s documents become the subject of a public information request.
- Prepare legal arguments and documentation for submission to the Office of the Attorney General when asserting exceptions to disclosure under Sections 552.104, 552.110, or 552.1101.
- Monitor legislative changes and court rulings that may impact your rights or responsibilities under the TPIA.
At Fee, Smith & Sharp LLP, our Business & Commercial Litigation Practice Group provides strategic counsel to professional services firms throughout Texas. We work closely with clients to minimize risk, protect intellectual capital, and respond effectively to the demands of public transparency laws.
Schedule a Consultation with Fee, Smith & Sharp LLP Today for Legal Guidance on the TPIA
The Texas Public Information Act promotes transparency but also recognizes the importance of protecting sensitive information. Professional services firms must proactively identify proprietary content, understand applicable exceptions, and respond appropriately to public information requests. By doing so, they can safeguard their competitive edge while complying with the law.
At Fee, Smith & Sharp LLP, our Business and Commercial Litigation Practice Group is committed to helping professional services firms navigate the complexities of the TPIA. Whether you need assistance responding to a public records request, protecting proprietary information, or drafting contracts with government entities, our team is here to help. Contact us today to schedule a consultation and learn how we can help protect your business while meeting Texas’s evolving public information requirements.
