UT, UNT resist releasing their deals with soft drink companies

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A Boston University journalism student’s nationwide quest for records on state universities’ dealings with soft drink companies has turned up two Texas college systems reluctant to provide that information.

While dozens of state university systems around the country have given Carolyn Komatsoulis the information she’s seeking, the University of Texas is resisting the request with a referral to the state attorney general’s office.

The University of North Texas provided her with its contracts with Coca-Cola dating back to 1997 but, like UT, referred her request for the current contract to the AG’s office for a ruling on whether it had to be released.

Komatsoulis, a contributor to MuckRock, which helps the public request and share public records, said she has been submitting the requests to “do a survey of contacts with these universities and … to find out what was going on with Pepsi and Coke.”

On Aug.7 she requested contracts with the beverage corporations from 91 universities across the country. Forty schools or systems have provided the contracts, while 37 have yet to acknowledge the request or respond. Two universities — the University of Delaware and Pennsylvania State University — have refused.

Texas A&M provided Komatsoulis with a copy of its 28-page contract with Pepsi last week with no additional questions. The University of Houston did the same on its deal with Coca-Cola. Both UT and the University of North Texas cited the state’s public records statutes allowing public entities to withhold records that might divulge business or trade secrets. UT cited interests with both Pepsi and Coca-Cola, to whom the university copied its challenge of the request.

Due to a 2015 opinion from the Texas Supreme Court, the universities will likely prevail in refusing to provide the contracts.

“At this point, we are laboring under this Boeing case ruling from the state Supreme Court,” said Joe Larsen, an open records lawyer in Houston.

The decision allowing the Port Authority of San Antonio to withhold its lease agreement with Boeing permits public entities to shield contracts from the public under the presumption that divulging them would compromise the competitive advantage or alleged trade secrets a third party might have.

“That ruling has completely colored the information that is available through public records,” Larsen said. “It used to be that you got the contract in order to see how much a government body was paying for a service or a deal. But now, both the government body and the third party can challenge anyone seeking to get that information. And they will prevail.”

The records are not legally required to be withheld, as in student information or medical records, but release is at the discretion of the government entity.

Since the Boeing case, over 2,000 open records rulings or letters from the AG’s office have cited the decision.

“For many years, this office concluded the terms of a contract and especially the pricing of a winning bidder are public and generally not excepted from disclosure,” reads a January AG ruling in a public records request appeal from the Port of Houston Authority. “However, now, pursuant to Boeing … a third party need only show [that] release of its competitively sensitive information would give an advantage to a competitor even after a contract is executed.”

The ruling supported the port’s right to withhold contract information.

A bill introduced in 2017 by state Sen. Kirk Watson (D-Austin) claimed that the Boeing decision transformed a standard exception regarding business interests into a “lax trade-secrets exception.”  It was one of several measures aimed at mitigating the effects of the Boeing case, but none passed.

Texas A&M’s $2.1 million deal with Pepsi, signed in 2010, outlines prices and perks, down to the ten season tickets for football and basketball games that Pepsi receives.

“We’ve been committed to providing these contracts openly,” said university system spokesman Tim Eaton.

At the University of North Texas, the $1.6 million Coca-Cola contract signed in 1997 increased to $3.8 million by 2012 and includes a provision for season tickets for basketball and football. UNT also released four amended copies of the agreement, which had previously been ruled releasable.

Like UT, UNT cited a third-party interest in withholding the current contract.

Referring the request to the AG’s office was not a function of how the Boeing decision may affect the release, said Renaldo Stowers, senior associate general counsel at UNT. It was more to give Coca-Cola a say in what the company might contend are proprietary or trade issues, he said.

“I can’t tell you how [Boeing] has affected us, as it’s a case-by-case analysis,” Stowers said.

“The Boeing case made it easier for information that is referred to the AG to be withheld based on the interests of third parties,” Shilpa Bakre, a UT spokeswoman, said in an email.

“…We now generally refer executed agreements to the AG if we believe that they contain information that may implicate the proprietary rights of third parties.”

UT has for years been a challenge for public records requestors. Starting in 2015, the university provided a website where the public could view open records requests made to the university system. The site was taken down in late 2017 because “the websites received little traffic from the public but had a very high administrative burden to maintain,” a school official said.

In cases where a public body in Texas seeks an AG opinion on a request, requestors can send to the AG their own argument as to why the information should be released. Komatsoulis said she was not sure if she would follow up.

Steve Miller can be reached at [email protected].

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