You are on page 1of 3

Honorable Greg Abbott

Attorney General of Texas

Open Records Division
P.O. Box 12548
Austin, TX 78711-2548
Dear Attorney General Abbott,
Dallas Area Rapid Transit (DART) has sought two open records opinions from your office (DART
ORR 10301 and DART ORR 10303, Attachment 1) in response to an open records request from The
Dallas Morning News (Attachment 2). We respectfully would like to submit comments in response, as
is permitted under the TPIA.
The News requested copies of Form 60s for current DART contractors and subcontractors as of Oct.
1, 2013. The paper also sought copies of Form 60s for the engineering firm of Lockwood, Andrews
and Newnam, Inc., and any of its subcontractors, submitted between the last day of FY 2001 and the
first day of FY 2014. It sought similar information for Bowman Engineering and any of its
subcontractors between the last day of FY 2003 and the first day of FY 2014.
The information we requested specifically involves companies that have obtained contracts from
DART and as a result have been paid, or are being paid, with taxpayer dollars. The Form 60 includes
information on estimated costs for taxpayer-funded projects and how much specific individuals are
being paid for their services. It also includes information on subcontractors and consultants.
Disclosure of such information, for example, might identify former employees of a government entity
who are now working for a contractor, or relatives of current employees. It might be used to determine
if the subcontractors listed actually were hired and, if they were identified as minority- or womanowned businesses, whether they actually met that criteria.
Transparency in how taxpayer dollars are being spent is in the publics interest, especially when it
involves an agency that has had past problems with contractors and subcontractors. One DART
contractor, for example, was convicted on federal charges that he fraudulently obtained demolition and
excavation work. He was alleged to have used women- and minority-owned subcontractors as fronts
when seeking DART contracts (Attachment 3).
In response to The News open records request, DART sent out letters to companies that had contracted
with the agency offering suggestions for commonly raised exceptions. (Attachment 4).
DART cited Open Records Decision No. 652 (1997) (Attachment 5) in its letter to contractors.
That decision appears to address the release of information related to secret processes or methods of
manufacture or production, and whether the information was identified as confidential when
submitted. What is typically submitted on a Form 60 does not appear to include such information
(Attachment 6).
Further, we have no indication that the information we seek was identified as confidential when

Open Records Decision No. 639 (1996) (Attachment 7) points to the conclusions of Judge Rubin in
Sharyland Water Supply Corp v. Block, 755 F.2d 397, 399 (5th Cir.), cert. denied, 471 U.S. 1137
(1985), stating that the party seeking to prevent disclosure must show by specific factual or
evidentiary material, not conclusory or generalized allegations, that it actually faces competition and
that substantial competitive injury would likely result from disclosure.
We would note that the information requested is for contracts that already have been granted, not bid.
The winning bidder no longer is in competition for the contract. We have seen no specific arguments
that address how disclosing how many hours employees worked on a contract, or how much they were
paid, would translate into substantial competitive injury.
The information typically contained in a Form 60 does not appear to include tax information,
inventories or other financial information that a company conceivably might be in a position to make a
stronger argument to block disclosure. It appears to focus on information that is solidly in the publics
interest to know: who is getting taxpayer money for contracts.
The North Central Texas Council of Governments (NCTCOG) also uses Form 60s. An NCTCOG
document titled Instructions for Proposals states that a Request for Qualifications must include a
proposed budget itemized on a Form 60. (Attachment 8). The document also notes that procurement
information shall be a public record to the extent provided by the Texas Open Records Act and the
Freedom of Information Act and shall be available to the public It states that if a proposer submits a
proposal with information that he or she considered to be proprietary and doesnt want it disclosed, the
information must be identified as such.
We respectfully ask that the information contained in DARTs Form 60s be released its entirety.
Should you conclude that portions of that information should not be disclosed, we respectfully ask that
DART be directed release the remainder with redactions.
Thank you for your consideration.

Ed Timms
The Dallas Morning News