Open Records Decision No. 226
September 14, 1979

	Re:  Is information in employee's IRS Form W-2 public under Open Records 
Act?

Mr. Jerome Chapman
Commissioner
Texas Department of Human Resources
John H. Reagan Building
Austin, Texas  78701

Dear Mr. Chapman:

	You request our decision on whether information in an employee's Wage and Tax 
Statement, Internal Revenue Service Form W-2 is excepted from required public 
disclosure under section 3(a)(1) or 3(a)(2) of the Open Records Act, V.T.C.S. article 
6252-17a.  It is your position that it would be an invasion of an employee's privacy to 
disclose this information to the public.

	You have received a request for a copy of the 1978 earnings and taxes for a 
specified employee.  Information on a Form W-2 includes an employee's name, address, 
social security number, total wages, tips, or other compensation, amount of federal 
income tax withheld, FICA tax withheld, and total FICA wages.

	Some of the information included on the form is expressly made public under the 
Open Records Act.  Section 6(a)(2) of the Act provides that the name, salary, title, and 
dates of employment of employees is public, and section 6(a)(3) provides that 
information in any account, voucher, or contract dealing with the receipt or expenditure 
of public funds is public unless otherwise made confidential by law.  This office has held 
that the name, address and social security number of an employee is public, Open 
Records Decision No. 169 (1977); and that his or her salary or wages received is public 
information, Open Records Decision Nos. 139, 132 (1976); 59, 41, 37, 20, 14 (1974).  
Thus, this type of information is public and must be disclosed, and the fact that it appears 
on Form W-2 does not restrict access to it.

	The issue then narrows to whether the amount of federal income tax withheld, 
FICA tax withheld and total FICA wages is excepted from required public disclosure.  In 
Attorney General Opinion H-1274 (1978), this office held that information in a federal 
tax return submitted to a tax assessor-collector is excepted from required public 
disclosure under section 3(a)(1) as information deemed confidential by judicial decisions 
protecting privacy.

	Return information is defined in 26 U.S.C. section 6103(b) to include deductions, 
exemptions, tax withheld, among other information.  Section 6103(a) establishes the 
general rule that such information is confidential and restricts disclosure by federal and 
state officers and employees.  26 U.S.C. section 7213 makes it a felony offense for 
federal or state officers or employees to disclose return information.  While the 
application of these provisions to a state agency as the employer who prepares the 
information is not clear, we believe that in light of these provisions and the prior decision 
in Attorney General Opinion H-1274 (1978), that the information on a Form W-2 
concerning the amount of federal income tax withheld, FICA tax withheld, and total 
FICA wages is information made confidential by law and is excepted from required 
public disclosure under section 3(a)(1).

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Ted L. Hartley
Executive Assistant Attorney General

Prepared by William G Reid
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Rick Gilpin
William G Reid
Bruce Youngblood