Open Records Decision No. 400
November 2, 1983

	Re:  Whether investigative report prepared by the city of Dallas Department of 
Housing and Neighborhood Services is excepted from disclosure under the Open Records 
Act

Mr. Edward H. Perry
Assistant City Attorney
City Hall
Dallas, Texas  75201

Dear Mr. Perry:

	Some time ago, a citizen alleged that a neighborhood services representative of 
the Department of Housing and Neighborhood Services of the city of Dallas had engaged 
in certain illegal or improper job-related activities.  The department investigated these 
allegations and prepared a report.  The citizen who made the allegations has requested a 
copy of this report, and you have asked whether the Open Records Act, article 6252-17a, 
V.T.C.S., requires you to release it.  You claim that sections 3(a)(1), 3(a)(2), and 
3(a)(11) of the act apply to all or part of the report.  These sections except from required 
disclosure:

	(1)	information deemed confidential by law, either 
Constitutional, statutory, or by judicial decision;

	(2)	information in personnel files, the disclosure of which 
would constitute a clearly unwarranted invasion of personal privacy; 
provided, however, that all information in personnel files of an 
individual employee within a governmental body is to be made 
available to that individual employee or his designated 
representative as is public information under this Act;

	. . . .

	(11)	inter-agency or intra-agency memorandums or letters 
which would not be available by law to a party other than one in 
litigation with the agency.

	We will first consider your section 3(a)(11) claim.  In your request letter, you 
stated as follows:

A few months ago the requestor was allowed to review the report in 
question in order to ensure that a complete investigation was 
conducted and that all charges were answered in one way or 
another.  The requestor was allowed to review the report based on 
the understanding that the requestor would not be given a copy of 
the final report.  (Emphasis in original).

Correspondence to this office indicates that you have also made the material available to 
others.  Section 14(a) of the Open Records Act provides:

This Act does not prohibit any governmental body from voluntarily 
making part or all of its records available to the public, unless 
expressly prohibited by law; provided that such records shall then be 
available to any person.  (Emphasis added).

	We conclude that when you permitted members of the public to examine this 
report, you waived any claim that you might have had under section 3(a)(11).  The 
voluntary disclosure by a governmental body to a private citizen of information which 
could be withheld under section 3(a)(11) is not "prohibited by law" within the meaning 
of section 14(a).  A governmental body is, therefore, free to effect such disclosure if it 
wishes to do so.  However, under the express terms of section 14(a), once such voluntary 
disclosure has occurred, as it has in this instance, the information in question "shall then 
be available to any person."  Accordingly, we reject your section 3(a)(11) claim.

	At first glance, it might appear that when you voluntarily released this report to 
this citizen, you also waived any claim that you might have had under any other section 
3(a) exception.  Section 10(a) of the Open Records Act provides, however, that 
"information deemed confidential under the terms of this Act shall not be distributed."  
Information within section 3(a)(1) of the act is "confidential" within the meaning of 
section 10(a), and the release of such information is therefore prohibited both by that 
section and by section 14(a).  We must, therefore, determine whether any information in 
the requested report is within the ambit of section 3(a)(1).

	Your argument under section 3(a)(1) is that certain information in this report is 
protected from required disclosure under the "false light" privacy test articulated and 
discussed in Open Records Decision Nos. 372 (1982) and 308 (1982).  In the latter 
decision, this office concluded that information may be withheld under this test where (1) 
it is communicated to a public body by an anonymous source; (2) the agency determines 
that it is not true; and (3) the public interest in disclosure is minimal.  In the former 
decision, this office held that

a governmental body may withhold information on the basis of false 
light privacy, only if it finds, based upon the weight of evidence 
demonstrable to this office, that there is serious doubt about the 
truth of the information.  In addition, the information must be highly 
offensive to a reasonable person and the public interest in disclosure 
must be minimal.  (Emphasis added).

The former decision also highlighted the narrowness of the holding in the latter decision.  
It observed that in the latter decision, the false light privacy test was applied in a situation 
in which "scurrilous information about a particular individual that was put in [the] 
agency's file had been communicated to the public body by an anonymous source . . . ."  
(Emphasis added).

	We conclude that the false light privacy test does not except from disclosure any 
information in this report.  We reach this conclusion for the following reasons.

	Virtually everything that you seek to withhold under this test is itself, or is 
directly related to, the allegations made by the complaining citizen concerning the 
manner in which the employee in question performed her job.  The citizen alleged that 
the employee engaged in activities which could be characterized as either illegal or 
improper.  As we read the report, none of the allegations concerned private activities of 
the employee, i.e., activities which did not relate to her job performance.

	Both the courts and this office having frequently held that the name of a private 
citizen who is arrested and the reason(s) for the arrest are public information.  See, e.g., 
Houston Chronicle Publishing Company v. City of Houston, 531 S.W.2d 177 (Tex. Civ. 
App. - Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 
1976).  In our opinion, a city employee charged with engaging in illegal or improper 
activities during the course of her employment is not in a qualitatively different position 
under the Open Records Act from a citizen arrested and charged with a crime.  Just as the 
arrestee's name and the reasons for the arrest may not be withheld from the public in the 
latter situation, we believe that the employee's name and the offenses alleged may not be 
withheld in the former.  In this context, we note that the reasons favoring public 
disclosure in the former situation are even more compelling, since that situation involves 
a public employee rather than a private citizen.

	In Open Records Decision No. 372 (1983), this office held that, in order to be 
withheld under the false light privacy test, information must be highly offensive to a 
reasonable person and the public interest in its disclosure must be minimal.  This is not a 
balancing test; information must satisfy both of these tests to be held nondisclosable.  See 
Hubert v. Harte-Hanks Texas Newspapers, Inc., 652 S.W.2d 546 (Tex. App. - Austin 
1983, writ pending) (discussion of Industrial Foundation of the South v. Industrial 
Accident Board, 540 S.W.2d 668 (Tex. 1976) [hereinafter IAB].  In the present instance, 
we conclude that -- even if the release of the requested information could be deemed to 
be "highly offensive to a reasonable person" (emphasis added) -- it cannot be said to be 
of minimal interest to the public.  On the contrary, we believe that the general public has 
a compelling interest in knowing about allegations concerning the manner in which a 
Neighborhood Services Representative of the city of Dallas performs her job duties.  It 
also has a compelling interest in learning the details of the investigation into those 
allegations and the conclusions reached during that investigation.  If the allegations prove 
to be unfounded -- and you assert that this is the case in this instance -- that will be part 
of the public record which is released.

	For all of these reasons, we conclude that the section 3(a)(1) false light privacy 
test does not apply in this instance.

	"False light" privacy is, of course, not the only basis for withholding information 
under section 3(a)(1).  We are, however, aware of no statutory or constitutional provision 
which applies to this information.  Nor do we believe that the information is excepted 
under the common law privacy test articulated in IAB, supra.  That test is virtually 
identical to the portion of the false light privacy test discussed above.  It asks whether the 
release of particular information would be highly offensive to a person of ordinary 
sensibilities and whether the public has any legitimate interest in obtaining that 
information.  As we have already noted, even if we assume that the first part of this test 
is satisfied here, we believe the second part is clearly not satisfied.

	We therefore conclude that the requested information is not protected from 
disclosure under section 3(a)(1).  We next consider section 3(a)(2).

	The scope of employee privacy under section 3(a)(2) is very narrow.  See, e.g., 
Open Records Decision No. 336 (1982).  As the court observed in Hubert v. Harte-Hanks 
Texas Newspapers, Inc., supra, at 551, information is protected from disclosure under 
this section only if its release would lead to a clearly unwarranted invasion of the 
employee's privacy.  The same court also held that the test articulated in IAB, supra, at 
550, should be applied to determine whether information may be withheld under section 
3(a)(2).  We believe that when one applies these tests, one can only conclude that none of 
the information in the requested report may be withheld under section 3(a)(2).

	To summarize:  none of the requested report may be withheld from disclosure 
under sections 3(a)(1), 3(a)(2), or 3(a)(11) under the facts of this case.

Very truly yours,

Jim Mattox
Attorney General of Texas

Tom Green
First Assistant Attorney General

David R. Richards
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood