Open Records Decision No. 473
July 21, 1987

	Re:  Whether information relating to computer assisted employee performance 
evaluation of city council appointees is subject to the Open Records Act

Mr. Stephen G. Williams
City Attorney
P.O. Box 779
Galveston, Texas  77553

Dear Mr. Williams:

	You received a request under the Texas Open Records Act, article 6252-17a, 
V.T.C.S., for copies of performance appraisals of certain employees appointed by the 
Galveston City Council.  You submitted copies of the documents in question to this 
office for review pursuant to section 7 of the act.  The appraisals in question cover the 
city attorney, the city manager, the city secretary, the municipal court judge, and the city 
tax assessor/collector.  The appraisals consist of several categories of information:  (1) a 
statement of the basic philosophy and objectives of the performance appraisal along with 
a description of how the appraisal works; (2) one-page job descriptions of each appointed 
position; (3) performance appraisal manuals for each appointed position in question, 
consisting of a series of questions geared toward each job description with a priority 
weight attached to each question and a choice of five numerical responses (# 1 
representing "unsatisfactory" and # 5 representing "outstanding"); (4) performance 
evaluation worksheets that include the name and position of the appointee evaluated, the 
name of the evaluator, and the numerical responses to the questions described above as 
category 3; and (5) computer printouts with the name of the appointee evaluated, 
numerical "score" for each question, and interpretations of the numerical scores.  The city 
council members obtained the appraisal system under contract with a private firm and 
each council member individually performed the evaluations.

	Information submitted in connection with this request reveals that the city 
received this request sometime between September 9th and 26th, 1986.  The city 
responded to the request on September 26th, informing the requestor that the city 
believed the appraisals are excepted from required disclosure under the Open Records 
Act and that the city intended to request the attorney general's decision on the issue.  The 
city did not, however, request the decision of this office until February 10, 1987.

	Section 7(a) of the Open Records Act provides:

	If a governmental body receives a written request for 
information which it considers within one of the exceptions stated in 
Section 3 of this Act, but there has been no previous determination 
that it falls within one of the exceptions, the governmental body 
within a reasonable time, no later than ten days, after receiving a 
written request must request a decision from the attorney general to 
determine whether the information is within that exception.  If a 
decision is not so requested, the information shall be presumed to be 
public information.  (Emphasis added).

	The attorney general interprets section 7(a) to mean that if a decision is not 
requested within 10 days, the information is presumed to be public.  Open Records 
Decision No. 319 (1982).  The governmental body must show a compelling interest to 
overcome this presumption.  Id.  A less compelling interest will overcome the 
presumption when third-party privacy interests are at issue.  Id.  The sections protecting 
governmental interests, such as sections 3(a)(3) and 3(a)(11), are qualitatively different 
from the sections protecting information deemed confidential under the Open Records 
Act.  Under the act, confidential information cannot be released.  See art. 6252-17a, 
§§10(a), 10(e).  In contrast, most of the information excepted by sections protecting 
governmental interests may be released to the public at the discretion of the 
governmental body, so long as the information is not selectively disclosed.  See art. 
6252-17a, §§3(c), 14(a); see also Open Records Decision No. 463 (1987).  Moreover, the 
protection of the sections protecting governmental interests can be waived when a 
governmental body fails to claim them.  See Open Records Decision Nos. 455 (1987); 
325 (1982).  For these reasons, a compelling reason for withholding information 
protected by these sections is more difficult to establish than a compelling reason to 
withhold confidential information.

	Under the Open Records Act, all information held, as described in section 3(a), 
by a governmental body must be released unless the information falls within one of the 
act's specific exceptions to disclosure.  You assert that sections 3(a)(1), 3(a)(2), 3(a)(3), 
3(a)(9), and 3(a)(11) protect this information from required public disclosure.  In light of 
the fact that the city did not request a decision within the statutory deadline, this decision 
addresses only your argument with regard to sections 3(a)(1), 3(a)(2), and 3(a)(9).

	Section 3(a)(1) protects

information deemed confidential by law, either Constitutional, 
statutory, or by judicial decision.

A primary purpose of this section is to protect privacy interests.  Section 3(a)(1) 
incorporates constitutional privacy, common-law privacy, and statutory confidentiality.  
Only common-law privacy is relevant to your request.  You do not indicate that the 
private firm that designed the evaluation system asserts any proprietary interest in the 
system.

	Section 3(a)(2) protects

information in personnel files, the disclosure of which would 
constitute a clearly unwarranted invasion of personal privacy . . . .

This section protects personnel file information only if its release would cause an 
invasion of privacy under the test articulated for section 3(a)(1) of the act.  Hubert v. 
Harte-Hanks Texas Newspapers, Inc., 652 S.W.2d 546, 550 (Tex. App.--Austin 1983, 
writ ref'd n.r.e.).  Consequently, this decision addresses exceptions 3(a)(1) and 3(a)(2) 
together.

	Sections 3(a)(1) and 3(a)(2) incorporate the common-law privacy test articulated 
by the Texas Supreme Court in Industrial Foundation of the South v. Texas Industrial 
Accident Board, 540 S.W.2d 668 (Tex. 1976).  Under sections 3(a)(1) and 3(a)(2), 
information may be withheld on common-law privacy grounds only if (1) the 
information contains highly intimate and embarrassing facts about a person's personal 
affairs such that release of the information would be highly objectionable to a reasonable 
person, and (2) the information is of no legitimate concern to the public.  Open Records 
Decision No. 464 (1987).  Consequently, even if employee evaluations contain highly 
subjective evaluations, they may not ordinarily be withheld under sections 3(a)(1) and 
3(a)(2).  See id.  The fact that a public employee receives a less than perfect -- or even a 
very bad -- evaluation is not the type of information protected by common-law privacy; it 
is not a highly intimate or embarrassing fact about the employee's personal affairs.  
Moreover, the public has a legitimate interest in the job performance of public 
employees.  See, e.g., Open Records Decision No. 441 (1986).

	Section 3(a)(9) protects

private correspondence and communications of an elected office 
holder relating to matters the disclosure of which would constitute 
an invasion of privacy.  (Emphasis added).

By its terms, this exception does not apply to the information in question.  Section 
3(a)(9) was intended to protect the privacy rights only of elected office-holders.  Open 
Records Decision No. 332 (1982).  Although elected city council members performed 
these evaluations, the evaluations do not implicate privacy interests of the city council 
members.

	Consequently, because the release of these appraisals does not implicate 
confidentiality interests and because the city has failed to show a compelling reason why 
the appraisals should be withheld, the appraisals must be released.

SUMMARY

	The city of Galveston received a request under the Texas Open 
Records Act, article 6252-17a, V.T.C.S., on or around September 
26, 1986.  The city did not request the decision of this office until 
February 10, 1987.  Under section 7(a) of the Open Records Act, if 
a governmental body fails to request, within 10 days, the decision of 
the attorney general with regard to a request for information under 
the Open Records Act, the information is presumed public.  The 
governmental body must show a compelling interest to overcome 
the presumption.

	Although a less compelling interest will overcome the 
presumption when privacy or confidentiality interests are at issue, 
the appraisals at issue do not contain confidential information.  
Performance appraisals made by city council members that evaluate 
certain employees appointed by the city council may not be 
withheld from public disclosure under sections 3(a)(1) or 3(a)(2) of 
the Open Records Act, unless they contain highly intimate or 
embarrassing facts about the employee's personal affairs and they 
are of no legitimate interest to the public.  The appraisals at issue 
here do not meet this test.  Nor does section 3(a)(9) apply to these 
evaluations.

	Consequently, because the release of these appraisals does not 
implicate confidentiality interests and because the city failed to 
show a compelling reason why the appraisals should be withheld, 
the appraisals must be released.

Very truly yours,

Jim Mattox
Attorney General of Texas

Mary Keller
Executive Assistant Attorney General

Judge Zollie Steakley
Special Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General