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Office of the Attorney General - State of Texas John Cornyn |
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February 8, 2002 Mr. Michael D. Chisum
OR2002-0604 Dear Mr. Chisum: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 158370. The Texas Department of Licensing and Regulation (the "department") received a request for copies of all records pertaining to Professional Employee Staff Services ("Professional"). You state that you have provided the requestor with some responsive information. You claim, however, that the submitted information is excepted from disclosure pursuant to sections 552.101 and 552.110 of the Government Code. You provide documentation showing that you notified Professional, a third party whose proprietary interests may be implicated by the request for information, of the department's receipt of the request. See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); see also Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Public Information Act (the "Act") in certain circumstances). We have considered the exceptions you claim and have reviewed the submitted information. You claim that a portion of the information is excepted from disclosure pursuant to section 552.101 of the Government Code in conjunction with section 91.014 of the Labor Code.(1) Section 91.014 provides in pertinent part: (d) A document submitted to establish net worth must show the net worth on a date not earlier than nine months before the date on which the application is submitted. A document submitted to establish net worth must be prepared or certified by an independent certified public accountant. Information submitted to or maintained by the department is subject to Chapter 552, Government Code, other than information related to: (1) identification of client companies; (2) net worth; (3) financial statements; or (4) federal tax returns. Labor Code, § 91.014(d). Based on our review of your arguments and this information, we find that it constitutes information relating to Professional's net worth, financial statements, and federal tax returns. Accordingly, we conclude that the department may withhold the information that we have marked from disclosure pursuant to section 552.101 of the Government Code in conjunction with section 91.014(d) of the Labor Code. You also claim that a portion of the information is excepted from disclosure pursuant to section 552.101 in conjunction with Chapter 411 of the Government Code. We note that federal regulations prohibit the release of criminal history record information ("CHRI") maintained in state and local CHRI systems to the general public. See 28 C.F.R. § 20.21(c)(1) ("Use of criminal history record information disseminated to noncriminal justice agencies shall be limited to the purpose for which it was given."), (2) ("No agency or individual shall confirm the existence or nonexistence of criminal history record information to any person or agency that would not be eligible to receive the information itself."). Section 411.083 of the Government Code provides that any CHRI maintained by the Department of Public Safety ("DPS") is confidential. See Gov't Code § 411.083(a). Similarly, CHRI obtained from the DPS pursuant to statute is also confidential and may only be disclosed in very limited instances. See id. § 411.084; see also id. § 411.087 (restrictions on disclosure of CHRI obtained from DPS also apply to CHRI obtained from other criminal justice agencies). Accordingly, the department must withhold from disclosure the information that we have marked pursuant to section 552.101 of the Government Code in conjunction with Chapter 411 of the Government Code. See id.; see also Gov't Code § 411.106(b), .082(2) (defining criminal history record information). You also claim that a portion of the information is excepted from disclosure pursuant to section 552.101 in conjunction with section 559.003 of the Government Code. Sections 559.001, 559.002, and 559.003 provide: Sec. 559.001. DEFINITIONS. In this chapter: (1) "Biometric identifier" means a retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry. (2) "Governmental body" has the meaning assigned by Section 552.003 [of the Government Code], except that the term includes each entity within or created by the judicial branch of state government. Sec. 559.002. DISCLOSURE OF BIOMETRIC IDENTIFIER. A governmental body that possesses a biometric identifier of an individual: (1) may not sell, lease, or otherwise disclose the biometric identifier to another person unless: (A) the individual consents to the disclosure; (B) the disclosure is required or permitted by a federal statute or by a state statute other than Chapter 552 [of the Government Code]; or (C) the disclosure is made by or to a law enforcement agency for a law enforcement purpose; and (2) shall store, transmit, and protect from disclosure the biometric identifier using reasonable care and in a manner that is the same as or more protective than the manner in which the governmental body stores, transmits, and protects its other confidential information. Sec. 559.003. APPLICATION OF CHAPTER 552. A biometric identifier in the possession of a governmental body is exempt from disclosure under Chapter 552. Gov't Code §§ 559.001, .002, .003. Section 559.002 does not appear to permit the disclosure of the submitted fingerprint information to the requestor. Therefore, we conclude that the department must withhold the fingerprint information that we have marked from disclosure pursuant to section 552.101 of the Government Code in conjunction with section 559.003 of the Government Code. You also claim that a portion of the information is excepted from disclosure pursuant to section 552.101 in conjunction with the common-law right to privacy. Section 552.101 also encompasses the common-law right to privacy. Information is protected under the common-law right to privacy when (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Prior decisions of this office have found that personal financial information not relating to a financial transaction between an individual and a governmental body is protected by the common-law right to privacy. See Open Records Decision Nos. 600 (1992), 545 (1990). We note, however, that the common-law right to privacy protects the rights of individuals, not business entities. See Open Records Decision Nos. 620 (1993) (corporation has no common-law privacy interest in its financial information), 192 (1978); see also United States v. Morton Salt Co., 338 U.S. 632, 652 (1950). In this instance, all of the information that you have marked under the common-law right to privacy constitutes the financial information of the specified partnership. Accordingly, we conclude that no portion of the information is excepted from disclosure pursuant to section 552.101 of the Government Code in conjunction with the common-law right to privacy. You also claim that a portion of the information is excepted from disclosure pursuant to section 552.110 of the Government Code. We note that an interested third party is allowed ten business days after the date of its receipt of the governmental body's notice under section 552.305(d) of the Government Code to submit its reasons, if any, as to why requested information relating to that party should be withheld from disclosure. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, Professional has not submitted any comments to this office explaining why any portion of the information should not be released to the requestor. Therefore, we have no basis to conclude that the release of any portion of the information would implicate the proprietary interests of Professional. See Open Records Decision Nos. 552 at 5 (1990) (stating that if governmental body takes no position, attorney general will grant exception to disclosure under statutory predecessor to Gov't Code § 552.110(a) if third party makes prima facie case that information qualifies as trade secret under section 757 of Restatement of Torts, and no argument is presented that rebuts claim as matter of law), 661 at 5-6 (1999) (stating that business enterprise that claims exception for commercial or financial information under Gov't Code § 552.110(b) must show by specific factual evidence that release of requested information would cause that party substantial competitive harm). Accordingly, the department may not withhold any portion of the information from disclosure pursuant to section 552.110 of the Government Code. In summary, the department may withhold the information that we have marked from disclosure pursuant to section 552.101 of the Government Code in conjunction with section 91.014(d) of the Labor Code. The department must withhold the information that we have marked pursuant to section 552.101 in conjunction with Chapter 411 of the Government Code. The department must withhold the fingerprint information that we have marked from disclosure pursuant to section 552.101 in conjunction with section 559.003 of the Government Code. The department must release the remaining information to the requestor. 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 Texas Building and Procurement 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, Ronald J. Bounds
c: Ms. Marilee L. Kainer
Ms. Galla McGuill
Footnotes 1. Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Section 552.101 encompasses information protected by other statutes. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |