The Attorney General of Texas 

December 31, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin. TX. 76711. 2548 

5121475.2501 

Telex 9101674-1367 

Telecopier 5121475.0266 

1607 Main St.. Suite 1400 

Dallas, TX. 75201.4709 

2141742J3944 

4624 Alberta Ave.. Suite 160 

El Paso, TX. 79905-2793 

9151533-3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002-6966 

7131650.0666 

606 Broadway, Suite 312 

Lubbock. TX. 79401.3479 

8061747.5236 

4309 N. Tenth. Suite B 

McAllen, TX. 76501-1685 

512,662.4547 

200 Main Plaza. Suite 400 

San Antonio, TX. 78205-2797 

512/225.4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Mr. Bob Armstrong 

Comissioner 

General Land Office 

Austin, Texas 78701 

Opinion No. MW-591 

Re: Whether name of person or 

entity nominating a tract of 

land to be put up for lease 

by the School Land Board at 

lease sale is open to public 

Dear Mr. Armstrong: 

Chapter 52 of the Natural Resources Code empowers the School Land 

Board to conduct mineral lease sales, at which the mineral rights to 

tracts of state-owned land are made available for lease. We 

understand that private individuals and companies, the School Land 

Board itself, and the General Land Office may nominate tracts of land 

to be included on the list of tracts, the mineral rights to which are 

offered for lease at these lease sales. 

You recently asked this office to render a decision under the 

Open Records Act, article 6252-17a, V.T.C.S. You asked whether you 

must disclose to a private attorney the identity of the person, 

company, or entity which had requested the School Land Board to 

include a certain tract of land on the list of tracts to be leased for 

mineral rights at a forthcoming lease sale. This lease sale was held 

four days after we received your request letter. 

Since we had not received all the relevant information pertaining 

to this matter before the lease sale was held, we could not respond to 

your request before that date. Normally, the elimination of the basis 

for a request under the Open Records Act moots the request. In this 

instance, however, your letter clearly indicates that you are more 

interested in knowing how to deal generally with this kind of request 

than you were in being advised as to how to handle this particular 

request. We will, therefore, treat your inquiry as a request for an 

attorney general opinion regarding the availability of the identities 

of those who nominate tracts to be leased by the School Land Board at 

mineral lease sales, rather than as an open records decision regarding 

the availability of the identity of a particular nominator. 

We understand that the procedure for leasing state lands for 

minerals is essentially as follows. The School Land Board sets a date 

0. 2197 
Mr. Bob Armstrong - Page 2 CM+'-591) 

for a mineral lease sale. It then notifies interested parties of the 

sale and invites them to nominate tracts of land to be put up for 

lease. As we have already noted, the School Land Board and the 

General Land Office, as well as private individuals and companies, are 

eligible to nominate tracts. When a tract is nominated, the Land 

Office checks it to ensure that it is free of encumbrances which would 

make it unavailable for lease. After the deadline for nominations has 

passed, the Land Office mails to various interested parties a Notice 

of Bids, which describes each tract and discusses the terms under 

which it will be leased. The sealed bids which are sent to the Land 

Office in response to this notice are opened at the beginning of the 

School Land Board meeting which is held on the morning of the sale and 

are then read to the public. 

In your letter, you advanced several arguments for treating as 

confidential the identities of those who nominate tracts of land for 

lease. You contend that sections 3(a)(4), 3(a)(lO), and 3(a)(ll) of 

the Open Records Act, article 6252-17a, V.T.C.S., authorize you to 

withhold this information. In view of our disposition of this matter, 

we need only consider section 3(a)(4), which excepts from required 

public disclosure "information which, if released, would give 

advantage to competitors or bidders." 

For purposes of our discussion of section 3(a)(4), we deem it 

useful to subdivide the class of potential nominators of tracts of 

land into two subclasses: (1) those who may (and likely will) 

themselves bid for the mineral rights to the tract which they 

nominate, i.e., private individuals and companies, and (2) those who 

will not do so, i.e., the School Land Board and the General Land 

Office. In our opinion, the identities of those in the former group 

may clearly be withheld from disclosure under section 3(a)(4). This 

office has previously recognized that "information concerning the 

identity of those who have submitted bids (before the last day of 

bidding), would be of advantage to other competitors or bidders...." 

Open Records Decision No. 46 (1974). See Open Records Decision No. - 

170 (1977). The policy reason for withholding the identities of 

bidders is obvious. Merely knowing the identities of other bidders 

could furnish a bidder with insights concerning the others' 

competitive capabilities which he may then use in structuring his own 

bid. Thus, if, when the Land Office receives a request for the 

identity of a nominator, that nominator has already bid on the tract 

which he nominated, his identity may be withheld under Open Records 

Decision No. 46. He would then be a "bidder" and disclosure of his 

identity could harm him, particularly since the identities of other 

bidders for the same mineral rights for which he bid may be withheld. 

Furthermore, even if a nominator has not yet bid when his identity is 

requested, we conclude that his identity may be withheld. We 

understand that individuals and companies which nominate tracts for 

lease usually bid for the mineral rights to those tracts. Thus, even 

,.- . 

p. 2198 
. _ . 

Mr. Bob Armstrong - Page 3 (MW-591) 

if a nominator has not yet bid eon the tract which he nominated, he 

will likely do so in the future. Therefore, because the likelihood 

that he will bid is substantial and because by the time he does bid it 

will be too late to preserve his identity, the identity of a nominator 

must be protected even before he bids. 

The question of the availability of the identities of nominators 

who will not bid for the mineral rights to the tracts which they 

nominate, -a, the School Land Board and the General Land Office, is 

more difficult. Nevertheless, we conclude that their identities may 

be kept secret as well. 

The information which we have obtained about the practice in the 

industry indicates that knowledge of the fact that a private party, as 

opposed to the School Land Board or the General Land Office, has 

nominated a particular tract for lease may well furnish an important 

clue as to the value of the mineral rights to that tract. To be more 

specific, such information would suggest that those mineral rights are 

more valuable than one might have assumed if the Land Board or Land 

Office had nominated the tract. If we were to hold that the 

identities of private parties who nominate tracts may be withheld, but 

that the fact that the School Land Board or General Land Office 

nominated a tract must be released, the result would be as follows. A 

requestor who asks for the identity of the nominator of a particular 

tract will know, once he is told that this information is 

confidential, that neither the School Land Board nor the General Land 

Office nominated that tract. In other words, he will know that a 

private individual or company nominated it. While we understand that 

the value of tracts of state-owned land is already generally known 

throughout the industry, the fact remains that it is not inconceivable 

that someone could acquire information about a particular tract which 

is unknown to others, information which suggests that the tract is 

especially valuable, and then, acting on the strength of that 

information, nominate that tract for lease in order to bid for the 

mineral rights to it. The legitimate competitive edge which his 

information would have afforded him would be lost to some extent if it 

became known that a private party, rather than the state, nominated 

the tract. Competitors who might otherwise have thought the tract 

worthless might enter the field and bid for the mineral rights to that 

tract; at the very least, they might endeavor to determine whether 

their original assessment of the tract's value was incorrect. Those 

who have already bid on the tract might adjust their bids. In short, 

public disclosure of the fact that the state did not nominate a 

particular tract of land for lease may afford a competitive advantage 

to "competitors or bidders" by placing at a competitive disadvantage 

the party which did nominate that tract. 

We therefore conclude that the identity of anyone who nominates a 

tract of land to be leased for mineral rights at lease sales conducted 

p. 2199 
. . . 

Mr. Bob Armstrong - Page 4 (m-591) 

by the School Land Board may be withheld from public disclosure until 

the deadline for bidding on that tract has passed. Once the deadline 

has passed, this information must be released. 

SUMMARY 

Section 3(a)(4) of the Open Records Act excepts 

from required public disclosure the identity of 

anyone who nominates tracts of state-owned land to 

be included on the list of tracts, the mineral 

rights to which are leased by the School Land 

Board at lease sales conducted under chapter 52 of 

the Natural Resources Code. 

-MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Jim Moellinger 

Bruce Youngblood 

p. 2200