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July 27, 2012

Office of the Texas Attorney General


Open Records Division
ATTN: Amanda Crawford, Esq.
P.O. Box 12548
Austin, TX 78711-2548
Dear Ms. Crawford,
The Dallas Morning News submitted a public information request on June 26, 2012 to the
North Central Texas Regional Certification Agency (NCTRCA), which certifies minority,
women-owned and disadvantaged business enterprises. (Please see Attachment 1).
In a letter dated July 2, 2012, the NCTRCA declined to provide the requested information,
claiming that its list of certified vendors was not subject to the Texas Public Information Act
(TPIA) because it is a nonprofit 501(c)(3) organization and that the information is precluded
from disclosure under state law because it constitutes trade secret information. (Please
see Attachment 2).
We respectfully challenge both assertions and note that the NCTRCA neither provided the
requested information in a timely manner in response to our June 26, 2012 letter, nor filed a
request for an Attorney General opinion regarding what it withheld. Moreover, we believe
that NCTRCA unquestionably is subject to the TPIA because it is a governmental body
within the meaning of Section 552.003 of the TPIA, as discussed below. See Tex. Govt
Code 552.003(xii). Given that the NCTRCA repeatedly has dealt with your office and has
filed at least two requests for Attorney General opinions, we believe the agency had no basis
to assert it was not subject to the TPIA and missed its deadline for requesting an Attorney
General opinion. Accordingly, NCTRCA has failed to comply with the mandatory deadlines
set forth in the TPIA, and as a result, the requested information must be disclosed. See Tex.
Govt Code 552.301, 552.302.
In addition to seeking records related to individuals and companies that are certified to do
business with governmental bodies, The News sought records related to those whove lost
NCTRCA certification, including an explanation of the reason. None of that information was
provided.
We therefore request that the NCTRCA be instructed to produce all of the information we
requested in accordance with the TPIA. We also would like to respond to the NCTRCAs
assertions on the merits.
The NCTRCA was formed by regional and local governmental bodies, continues to be
funded by those bodies and performs a function that traditionally was the responsibility of
governmental bodies. The primary reason companies seek a certification from NCTRCA, if
not the sole reason, is to be eligible to receive taxpayer money from governmental bodies.

At least 17 of the 20 member entities listed on the NCTRCAs website (www.nctrca.org,


Attachment 3) are local or regional governmental bodies. A Dallas County Community
College District webpage notes that The NCTRCA board of directors is comprised of
representatives from the member [governmental] entities, including DCCCD, which is
confirmed by a list included in a recent RFP proposal by the NCTRCA. (Please see
Attachment 4). Local governmental bodies support NCTRCA financially. For example, for
the 2007 fiscal year the Dallas County Community College District only one of the
NCTRCAs 20 member entities paid $36,180 in taxpayer funds for one years
membership in the NCTRCA. (Please see Attachment 5).
Indeed, Section 552.003(xii) of the TPIA provides that a governmental body subject to the
TPIA includes the part, section, or portion of an organization, corporation, commission,
institution or agency that spends or is supported in whole or in part by public funds. Tex.
Govt Code 552.003(xii); see Tex. Govt Code 552.002(a). The NCTRCA falls squarely
within this definition. To be sure, the information requested by The News was undoubtedly
created and/or is maintained by the NCTRCA in whole or in part through the use of public
funds. The information requested also relates to the core function of the NCTRCA, which is
to serve a common purpose or objective and evidences an agency-type relationship with
public entit[ies] namely, the NCTRCAs 18 governmental body member entities.
Tex. Atty. Gen. Op. JM-821, at 3 (1987); see Tex. Atty Gen. ORD602 (1992); Tex. Atty
Gen. ORD228 (1979). Thus, the NCTRCA is a governmental body for the purposes of the
TPIA and must therefore comply with The News request under the TPIA.
Allowing the NCTRCA to avoid disclosure of its records under the TPIA could establish a
troubling precedent. We have no insight into NCTRCAs motives, or of its member
entities. But given the pernicious and recurring abuses involving minority contracting in
Texas and throughout the United States including instances in which legitimate minority
businesses have lost contracts to companies making spurious claims about their minority
ownership we believe that transparency is in the publics interest. (Please see Attachment
6).
The publics interest is not served if, by forming and funding a 501(c)(3) organization,
governmental bodies can effectively hide information that might shed light on potential
mismanagement, a lack of due diligence or even criminal activity involving government
programs and the expenditure of taxpayer money. Unchallenged, that tactic may well
proliferate.
The NCTRCAs assertion that it is not subject to the TPIA as a 501(c)(3) organization is
perplexing, given the fact that, in the past, the agency has provided information in response
to TPIA requests and has sought an opinion from the Attorney Generals Office. In at least
one case, apparently after it obtained 501(c)(3) status, the NCTRCA even was represented by
an assistant Dallas city attorney (OR94-128, Attachment 7), which further illustrates the
depth of its agency-type relationship with governmental bodies. See Tex. Atty. Gen. Op.
JM-821, at 3.
Another 1994 ruling by the Attorney General Office (OR94-863, Attachment 8), pertaining
to a memorandum written by a NCTRCA director, concluded that because the document
clearly concerns the actions of the agencys workers and officials, it constitutes public
information subject to the Open Records Act.

The NCTRCAs own description of its function, contained in OR94-128, clearly defines its
relationship with local governments:
The NCTRCA certifies businesses as Minority/Women/Disadvantaged Business
enterprisesfor twelve member local governments in the Dallas/Fort Worth Metropolitan
area. Businesses seek certification in order to participate in federal and local contracting
programs.
The OR94-128 ruling followed a request by The News for NCTRCA certification
applications for 71 enterprises, including, but not limited to certification affidavits, names,
addresses and phone numbers of persons or principals applying, correspondence to and from
those enterprises or persons, internal reviews or file notations.
In that ruling, the NCTRCAs trade secrets arguments were rejected, as were efforts to
withhold information on loans and other commercial records for privacy. In the case at hand,
the NCTRCA has refused to provide much less-detailed information.
NCTRCA director Sheena Morgan included a copy of an Oct. 26, 2011, Attorney General
ruling (OR-2011-15715, Attachment 2) with its July 2, 2012, letter to The News, asserting
that her agency was not subject to TPIA and that your office has ruled that the NCTRCAs
vendor list is trade secret information.
In our June 26, 2012, letter, we did not ask for the vendor list, but for records that identify
all individuals and/or companies certified by your agency and releasable information
pertaining to those individuals and companies, including, but not limited to, names,
addresses, phone numbers and a description of the work performed by each entity. We also
asked for records that identify all individuals and/or companies that were removed from
your lists and releasable information pertaining to those individuals and companies
as well as any explanation why they were removed from your lists.
OR-2011-15715 specifically states that the ruling is limited to the particular information at
issue and the facts as presented to us and must not be relied upon as a previous
determination regarding any other information or any other circumstances.
NCTRCA made no effort to provide any documents. A good-faith response to our request
might have included the vendor list, but certainly was not limited exclusively to it. We assert
that sending a copy of an attorney general ruling that, at best, may address a portion of what
The News sought, did not relieve the NCTRCA of its obligation to either release what was
requested or seek an Attorney General opinion within the prescribed time. See Tex. Govt
Code 552.301, 552.302.
OR-2011-15715 also stated that your office will accept a private persons claim for
exception as valid under section 552.110(a) if that person establishes a prima facie case for
the [trade secret] exception, and no one submits and argument that rebuts the claim as a
matter of law.
This ruling appears to rely on information that the NCTRCA submitted. We believe that the
information provided did not include many relevant facts that directly rebut and/or
undermine the NCTRCAs assertions. We would respectfully ask that you weigh the
arguments in OR94-128 and OR-2011-15715 and also consider these additional facts and
observations:

In its correspondence with your office, as cited in the 2011 ruling, the NCTRCA apparently
claimed that its list was for the exclusive use of its fee-paying members and cannot be
acquired or duplicated by others as it is created through its unique certification process. The
NCTRCA also apparently argued that disclosure of the vendor list would cause the agency
severe economic harm because entities will no longer need to pay a membership fee for
access to the requested information.
According to the NCTRCAs own website, an Interlocal Cooperation Agreement was entered
into by nine founding member entities in June 1989 for the purpose of jointly providing
certification. Chapter 791 of the Texas Government Code states that the purpose of such
agreements is to increase the efficiency and effectiveness of local governments by
authorizing them to contractwith one another. Tex. Govt Code 791.013. NCTRCA
later obtained federal nonprofit status.
The governmental bodies that established the NCTRCA or since have joined it can, and
do, define whose certification they will accept.
For example, Dallas Area Rapid Transit, one of the NCTRCAs member entities, states on
its web page that all of its minority-owned/woman-owned/disadvantaged business
certifications are conducted for DART by the NCTRCA. (Please see 9). And under the
Texas Unified Certification Program, the NCTRCA is one of only six certifying agencies in
the state for the Federal Disadvantaged Business Enterprise (DBE) Programs in Texas.
(Please see Attachment 10).
Since its member governmental bodies typically will accept certification only from the
NCTRCA, or primarily from it, we challenge the premise that the NCTRCA would suffer
severe economic harm if the list is subject to disclosure.
By virtue of its exclusive relationship with its member entities, it appears that the NCTRCA
can virtually operate as a monopoly, with little real threat of competition. There is no
evidence that the NCTRCA must profit or perish in a free-market environment, fending off
competitors intent upon learning its trade secrets.
Anyone who wants to find out what information is obtained by the NCTRCA and its process
for certification need look no further than its webpage, where applications and procedures
manuals spelling out its certification standards are available to the public.
And one of its member entities, the City of Fort Worth, which requires that businesses must
be certified by the North Central Texas Regional Certification Agency, even features a
Find M/WBE Certified Vendor on its webpage (http:fortworthtexas.gov/mwbe/) that lists
the companies apparently certified by the NCTRCA.
Had The News received the NCTRCA information that Fort Worth apparently relies upon for
this web listing, as well as similar information for the agencys other government member
entities, the NCTRCA would have gone far in responding to our request.
Beyond claiming that it is not subject to TPIA, the NCTRCA offered no explanation why it
withheld information on individuals and companies whove lost their certification. We
believe it would be even more of a reach for the NCTRCA to claim that information was a
trade secret and that disclosing it would cause severe economic harm. Regardless, since the
NCTRCA is subject to the TPIA, that information, at the very least, should be immediately
disclosed.

Another factor raises questions about the NCTRCAs assertions regarding the vendor list.
Assuming that the NCTRCA updates its list by removing and adding names, any version
released in response to a TPIA request would provide only a snapshot in time with no
imprimatur. And, as such, it appears that it would have little or no commercial or revenue
value.
It stretches credibility to suggest that a governmental body, or even a private company
seeking to hire minority vendors for a government contract, would rely on a list released in
response to a TPIA that may or may not reflect who is currently certified thereby risking
the potential consequences of providing taxpayer dollars to an unqualified company. Any
value, it seems, relies upon being able to verify the status conferred on the individual or
business by the NCTRCA.
Similarly, it also stretches credibility to suggest that the very governmental bodies that
formed the NCTRCA, govern the agency through its board of directors, and financially
support it, would no longer need to pay a membership fee for access to the requested
information.
In conclusion, we believe that sending a copy of OR-2011-15715 to The News did not relieve
the NCTRCA of its obligation to comply with the TPIA. Having failed to meet its deadline
to request an Attorney General opinion, we ask that the NCTRCA be instructed to
immediately release the requested information. See Tex. Govt Code 552.301, 552.302.
On the merits, we believe that the NCTRCA is subject to the TPIA and that information it
produces for the benefit of governmental bodies and with taxpayer funds, including its
vendor list, should be released. We believe what was sought clearly falls within Section
552.002 of the Government Code as information collected, assembled, or maintained under
a law or ordinance or in connection with the transaction of official business: (1) by a
governmental body; or (2) for a governmental body and the governmental body owns the
information or has a right of access to it. Tex. Govt Code 552.002.
We challenge the NCTRCAs efforts to block release of the vendor list by claiming it is a
trade secret and note that the agency also failed to release information that presumably
would not be a part of that list, including records on individuals and companies that lost their
certification.
We respectfully ask that you rule on these issues on the merits as well.
Sincerely,

Ed Timms
The Dallas Morning News
etimms@dallasnews.com
cc:

Ms. Sheena Morgan


North Central Texas Regional Certification Agency
624 Six Flags Drive, Suite 100
Arlington, Texas 76011