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Via Public Information Act Electronic Filing System

December 14, 2015

Open Records Division


Office of the Attorney General
P.O. Box 12548
Austin, TX 78711-2548
Re: Objections to Public Information Request from Nick
Anderson to Texas A&M University (TAMU 15-997)
Dear Open Records Division:
On behalf of the Qatar Foundation for Education, Science and Community Development
(QF), we are writing to formally object to the disclosure of confidential information
referenced in the Public Information Request made by Nick Anderson to Texas A&M University
(TAMU), as further identified above (the Request). The Request sought the currently in
force agreement to establish and operate Texas A&M University in Qatar and any Exhibits
attached to the agreement. On December 2, 2015, TAMU notified QF of the request for records
TAMU received from QF and provided a copy of the records TAMU identified as responsive (the
Identified Records). The notice also included a copy of TAMUs request to the Office of the
Attorney General, Open Records Division for a decision on the Request, as TAMU believed the
records may contain commercial or financial information excepted from disclosure as thirdparty proprietary information. TAMU is correct and the requested records should not be
disclosed.
QF has determined that the Identified Records themselves constitute commercial or
financial information the release of which would cause substantial competitive harm to QF. In
addition, the Identified Records contain segregable sections of commercial or financial
information, which are independently excepted from disclosure. We have attached a version of
the Identified Records that highlights these segregable portions. This letter is timely because it
is submitted within 10 business days of receiving TAMUs December 2, 2015 notice.
I.

DESCRIPTION OF THE IDENTIFIED RECORDS

TAMU identified the January 13, 2014 Agreement to Continue to Operate the
Undergraduate and Graduate Programs at Texas A&M University in Qatar. As attachments,
the agreement included the

DC: 5915898-4

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December 14, 2015
Page 2

The agreement at issue renews an earlier 2003 agreement between TAMU and QF to
establish a branch campus known as Texas A&M University in Qatar (TAMUQ) offering
undergraduate degree programs. In 2010, the program expanded to include graduate degree
programs.
Recognizing that the undergraduate and graduate programs have been highly
successful and enhanced higher education in the State of Qatar, TAMU and QF renewed their
operation agreement in 2014.
Through similar agreements with Cornell University, Northwestern University, Carnegie
Mellon University, Georgetown University, Virginia Commonwealth University, HEC Paris and
University College London, QF has been instrumental in bringing western-style higher
education to the Middle East.
Faculty and staff from the United States and Europe teach
courses in many subjects, including art and design, medicine, computer science, business and
information systems, international affairs, journalism and communications. The TAMUQ
campus in Doha, Qatar offers programs in chemical, electrical, petroleum and mechanical
engineering. The TAMUQ programs require students in Qatar to meet the same rigorous
standards as the programs offered to students on the main campus at College Station in order to
receive degrees.
Although the existence of Education City is not confidential, QF takes great care to
ensure that the operational and financial details of these agreements are maintained in strict
confidence. For this reason, access to the agreements, even among QFs employees, is restricted
and each agreement includes a broad confidentiality provision. It is unlikely that QF would
enter into any such agreement with an institution without a robust and enforceable
confidentiality provision that protected the contents. For example, the Confidentiality Provision
in the Identified Records states:
Information concerning either Partys business methods, financial information,
future plans, personnel data, trade secrets, information systems, financial and
accounting policies or similar matters, or information designated as
confidential by a disclosing Party, shall be treated as confidential. Without
limiting the generality of the foregoing, this Agreement, its exhibits, and all
reports, plans and budgets associated with or generated as a result of
performance of this agreement shall be deemed confidential. The party
receiving such confidential information shall take the same precautions as it
takes to protect its own confidential information, but in all events reasonable
precautions, in order to preserve its confidentiality. Confidential information
shall not be revealed to third parties without the consent of the disclosing Party,
and no Party may use the other Partys confidential information for any purpose
except for purposes of performing this Agreement. (Emphasis added)

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December 14, 2015
Page 3

II.

THE IDENTIFIED RECORDS ARE EXCEPTED IN THEIR ENTIRETY FROM


PRODUCTION AS COMMERCIAL OR FINANCIAL INFORMATION

Commercial or financial information is excepted from disclosure under the Texas Public
Records Act. GOVT CODE 552.110(b). To qualify for this exception, a party must demonstrate,
based on specific factual evidence, that disclosure would cause substantial competitive harm to
the person from whom the information was obtained. GOVT CODE 552.110(b). This standard
resembles part of the test for applying the comparable exception under the federal Freedom of
Information Act, as set out in National Parks & Conservation Association v. Morton, 498 F.2d
765 (D.C. Cir. 1974) 1. See Office of the Atty Gen, Public Information Handbook 114 (2014 ed.).
To demonstrate substantial competitive harm under the Public Information Act, courts
have required evidence that actual competition exists and that the information would have a
negative impact on future competitions. See Boeing Co. v. Paxton, 46 S.W. 831, 841 (Tex. 2015)
(concluding that rate information would cause competitive harm when construing the Public
Information Acts bid information exception). Cf. National Parks & Conservation Association
v. Morton, 498 F.2d 765 (D.C. Cir. 1974) (requiring evidence of [a]ctual competition and the
likelihood of substantial competitive injury).
Disclosure of the Identified Records would cause substantial competitive harm to QF.
QF has similar business relationships with major educational institutions from the United
States, United Kingdom and France. QF is in the process of renegotiating several agreements
with its university partners who have branch campuses in Qatar, such as the agreements with
. It also expects to begin negotiations on other similar
agreements as they expire, including negotiations with
. Many of the agreements that establish branch campuses in Qatar have
. The agreements provide for, among other things, governance of the
branch campus, recruitment of deans, administrators and faculty, reimbursement of expenses,
payment of management fees and allocation of rights in intellectual property. It is self-evident
that QFs negotiating position will be harmed significantly if the other party to the agreement
knows in advance what business terms QF is willing to accept
. In addition,
there is a good deal of rivalry among the eight branch campuses operating at Education City. If,
in a future negotiation with one of its university partners, QF is not willing to offer terms that
are the same as those in the TAMU agreement, it may cause harm to a previously amicable
business relationship.
In addition to the renewal negotiations with existing branch campuses,

Under the National Parks standard, commercial or financial information is considered


confidential if disclosure of the information is likely . . . to cause substantial harm to the
competitive position of the person from whom the information was obtained. National Parks
Conservation Assn v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
1

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December 14, 2015
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. The disclosure of the TAMU agreement, with its


detailed terms
, could
have an adverse impact on the ability of QF to negotiate
for this new program.
It is important to note that, under the terms of the agreement between QF and TAMU,
, and that no taxpayer funds are used to build or operate the branch campus in Qatar
Accordingly,
the public interest that is sometimes served by having disclosure of agreements that provide for
the payment of public funds is not present in this case as TAMU is receiving funds from QF, not
paying them, under the terms of the operative agreement.
Finally, QF treats all of its branch campus agreements as sensitive commercial or
financial information. It restricts access to these agreements within the organization on a needto-know basis. It also insists on the inclusion of broad confidentiality provisions in each of these
agreements. These actions provide strong evidence of QFs consistent and contemporaneous
view of the Identified Records as confidential business information, the disclosure of which
would cause harm to QF.
III.

SEGREGABLE PORTIONS OF THE IDENTIFIED RECORDS ARE EXCEPTED


FROM PRODUCTION AS COMMERCIAL OR FINANCIAL INFORMATION.

In addition, segregable portions of the Identified Records qualify as commercial or


financial information, and are therefore independently excepted from disclosure. See GOVT
CODE 552.110(b).

are quintessential examples of commercial or financial


information.
. Its disclosure would undoubtedly cause competitive harm, as it provides key
information to service providers of all types, who can negotiate better terms if they know QFs
and TAMUQs
. Similarly, the contract provisions
related to
would prove competitively harmful if disclosed.
Any other university partner
will demand comparable terms in future negotiations if armed with the knowledge contained in
the cited provisions, to the direct financial detriment of QF.

. QF treats this information as highly confidential.


represents a significant negotiation point each time
these types of agreements are discussed, renewed or renegotiated. QF expects
to continue to be a focus in negotiations with its university partners,

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December 14, 2015
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QF will be competitively harmed if other university partners know

Any other
university partner will demand comparable terms in future negotiations if armed with the
knowledge contained in the cited provisions, to the direct financial detriment of QF.

that is often a point of


significant discussion during negotiation of these agreements and QF believes that they will
continue to be a significant discussion point during future negotiations. The release of this
information will cause competitive harm to QF because it will allow other universities to
negotiate more favorable
terms than QF would otherwise agree upon, to the direct
financial detriment of QF.

are sensitive information that are often a point of significant discussion


during negotiation of these agreements and QF understands that it will continue to be a
significant discussion point during future negotiations.
The release of information concerning
agreed to with TAMU will cause competitive harm to QF because it will allow other
universities to demand more favorable terms than QF would otherwise agree upon, thus
jeopardizing
.

This agreement details sensitive terms related to


. The disclosure of these provisions harms QFs ability to
negotiate better terms with a different university partner, as that partner will demand terms
equal to or better than those provided to TAMUQ.
IV.

CONCLUSION

In sum, the Identified Records are confidential commercial or financial information


within the meaning of Govt Code 552.110(b). Further, significant portions of the Identified
Records independently constitute commercial or financial information within the meaning of
Govt Code 552.110(a)-(b). TAMU is prohibited from disclosing such information by terms of
its agreements with QF. Accordingly, QF requests that the Office of the Attorney General
withhold all of the Identified Records from disclosure.

Open Records Division


December 14, 2015
Page 6

In the event that the Office of the Attorney General makes a final decision to release any
of the information or documents at issue, we request prior notice and an opportunity to seek
judicial relief. GOVT CODE 552.325.
In accordance with Texas Govt Code 552.305(e), QF has provided a redacted copy of
this letter to the requestor, Nick Anderson via email at Nick.Anderson@washpost.com.

Respectfully submitted,

Alan Pemberton
Kevin Barnett
Counsel for Qatar Foundation for
Education, Science and Community
Development
cc:

Nick Anderson (Redacted Version)


nick.anderson@washpost.com
R. Brooks Moore, Managing Counsel, Governance
The Texas A&M University System