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Office of the Attorney General - State of Texas John Cornyn |
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April 26, 2001 Ms. Lynn Rossi Scott
OR2001-1711 Dear Ms. Scott: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 146464. The Grand Prairie Independent School District (the "school district"), which you represent, received two requests for information concerning licensed electricians Michael Williams and Mark Bullard. In your first request dated February 21, 2001, you state the school district objects to the production of four categories of information, items 1, 10, 11, and 18. In your second request dated March 16, 2001, you state the school district objects to the production of two categories of information, items 1 and 7. These requested items pertain to the persons who complained about the two electricians. You state that the school district will release to the requestor the other requested items of information. You claim that the identities of, as well as any information that could identify, the informants, including entire documents, are excepted from disclosure under section 552.101 of the Government Code in conjunction with the informer's privilege and section 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We have also received and reviewed the requestor's letter dated March 26, 2001, and your rebuttal letter dated March 30, 2001. The informer's privilege, incorporated into the Public Information Act (the "Act") by section 552.101, protects the identities of persons who report violations of the law to officials having the duty of enforcing particular laws. See Roviaro v. United States, 353 U.S. 53, 59 (1957). The informer's privilege does not, however, apply to information that does not describe alleged illegal conduct. Open Records Decision No. 515 at 5 (1988). For example, the informer's privilege aspect of section 552.101 does not protect memoranda and written statements complaining of a fellow employee's work performance when those statements do not reveal the suspected violation of specific laws to the officials charged with enforcing those laws. See Open Records Decision Nos. 579 at 8 (1990), 515 at 3 (1988). In addition, the informer's privilege protects the content of the communication only to the extent that it identifies the informant. Roviaro, 353 U.S. at 60. The informer's privilege can also be found in section 552.131 where certain information, as here, is held by a school district. Section 552.131 excepts from disclosure the name of an "informer," or information held by a school district that would reveal the identity of an informer. Section 552.131 provides as follows: (a) "Informer" means a student or former student or an employee or former employee of a school district who has furnished a report of another person's or persons' possible violation of criminal, civil, or regulatory law to the school district or the proper regulatory enforcement authority. (b) An informer's name or information that would substantially reveal the identity of an informer is excepted from [required public disclosure]. (c) Subsection (b) does not apply: (1) if the information is a student or former student, and the student or former student, or the legal guardian, or spouse of the student or former student consents to disclosure of the student's or former student's name; or (2) if the informer is an employee or former employee who consents to disclosure of the employee's name; or (3) if the informer planned, initiated, or participated in the possible violation. (d) Information excepted under Subsection (b) may be made available to a law enforcement agency or prosecutor for official purposes of the agency or prosecutor upon proper request made in compliance with applicable law and procedure. (e) This section does not infringe on or impair the confidentiality of information considered to be confidential by law, whether it be constitutional, statutory, or by judicial decision, including information excepted from the requirements of Section 552.021. Gov't Code § 552.131.(1) Because the legislature limited the protection of section 552.131 to the identity of a person who reports a possible violation of "law," a school district that seeks to withhold information under that exception must clearly identify to this office the specific civil, criminal, or regulatory law that is alleged to have been violated. See Gov't Code § 552.301(e)(1)(A). You inform us that the electricians "may be guilty of theft of public funds, and/or falsification of government records, and/or other acts of misconduct involving their work" if they clocked onto their time cards, knowingly failed to work, and then received payment for time during which they were not working. This office has held that the informer's privilege under section 552.101 does not protect the identities of individuals who report activities falling outside the realm of criminal or quasi-criminal law enforcement. Open Records Decision No. 515 (1988). For example, Open Records Decision No. 218 (1978) determined that the privilege does not protect the identities of persons who complained to a county commissioner about the actions of a county employee. The opinion noted that no criminal conduct had been reported and that the "tone of each letter, when coupled with the consideration that each is addressed to a county commissioner rather than to the appropriate law enforcement official, indicates that the complainants expected administrative redress rather than criminal prosecution." Open Records Decision No. 218 at 2 (1978). It is apparent from the teachers' statements that they did not consider themselves to be reporting criminal or illegal behavior as required under section 552.101 or a possible violation of criminal, civil, or regulatory law under section 552.131. Consequently, we conclude the informer's privilege as incorporated by sections 552.101 and 552.131 does not prevent disclosure of the teachers' identities or their identifying information in this instance. Accordingly, with the exception of the following, you may not withhold the teachers' statements or other submitted information under section 552.101 or 552.131 of the Government Code. We note that the requested information contains information that is excepted from disclosure under section 552.102(b) of the Government Code. Section 552.102(b) excepts from disclosure "a transcript from an institution of higher education maintained in the personnel file of a professional public school employee," except for information on the transcript concerning the degree obtained or the curriculum. Thus you must release the degree obtained and the curriculum and withhold the remainder of the transcripts. We further note that the requested documents contain information that may be protected from disclosure under section 552.117 of the Government Code. Section 552.117 excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024. Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Therefore, the school district may only withhold information under section 552.117 on behalf of current or former officials or employees who made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. For those employees who timely elected to keep their personal information confidential, the school district must withhold the employees' home addresses and telephone numbers, social security numbers, and any information that reveals whether these employees have family members. The school district may not withhold this information under section 552.117 for those employees who did not make a timely election to keep the information confidential. We have marked the information that may be excepted under section 552.117 of the Government Code. Federal law may also prohibit disclosure of the employees' social security numbers. A social security number is excepted from required public disclosure under section 552.101 of the Act in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I), if it was obtained or is maintained by a governmental body pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 (1994). We have no basis for concluding that any of the social security numbers in the responsive documents are confidential under section 405(c)(2)(viii)(I), and therefore excepted from public disclosure under section 552.101 on the basis of that federal provision. We caution, however, that section 552.352 of the Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained by the school district pursuant to any provision of law, enacted on or after October 1, 1990. In summary, transcripts from an institution of higher education must be withheld except for information concerning the degree obtained or the curriculum, and the marked information must be withheld under section 552.117 provided the school district employees timely made their section 552.024 elections. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, Yen-Ha Le
YHL/DBF/seg Ref: ID# 146464 Encl. Marked documents cc: Ms. Ann H. Pogue
Footnotes 1. As of September 1, 1999, there were four sections of chapter 552 of the Government Code denominated by section 552.131. The quoted section 552.131 was added by the Act of May 30, 1999, 76th Leg., R.S., ch. 1335, § 6, 1999 Tex. Sess. Law Serv. 4543, 4545 (Vernon) (codified at Gov't Code § 552.131). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |