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Office of the Attorney General - State of Texas John Cornyn |
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March 1, 2002 Mr. John S. Schneider, Jr.
OR2002-0998 Dear Mr. Schneider: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 159316. The City of Pasadena Police Department (the "department") received a request for the following information pertaining to a specified city police officer: all call slips for a given time period, the personnel file, and all training certificates. You claim that the requested information is excepted from disclosure under sections 552.101, 552.102, 552.103, 552.117, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.(1) We first note that in requesting this decision, you have not addressed item number 1 of the request for information, nor have you submitted any information that appears to be responsive to this part of the request. We therefore assume that the department has released any records that it holds, or to which it has access, that are responsive to item number 1 of this request for information. If not, then the department must do so at this time. See Gov't Code §§ 552.006, .301, .302; see also Open Records Decision No. 664 (2000). You contend that Exhibit A is excepted from disclosure under section 552.103 of the Government Code. Section 552.103(a) provides as follows: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. A governmental body has the burden of providing relevant facts and documents to show the applicability of an exception in a particular situation. The test for establishing that section 552.103(a) applies is a two-prong showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.-Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 588 (1991). Further, litigation must be pending or reasonably anticipated on the date the requestor applies to the public information officer for access. Gov't Code § 552.103(c). You assert that the requestor "represents a person charged with some criminal offense which would fall squarely under the criminal litigation exception." To establish that litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party. Open Records Decision No. 555 (1990); see Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). You have not provided any concrete evidence showing that the department reasonably anticipates litigation to which it would be a party. Therefore, we conclude that you have failed to demonstrate the applicability of section 552.103. Thus, you may not withhold Exhibit A under section 552.103 of the Government Code. Next, you contend that Exhibit A is excepted from disclosure under section 552.101 in conjunction with section 143.089(f) of the Local Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by statute. Section 143.089(f) provides that the civil service director may not release any information contained in a civil service personnel file without first obtaining the person's written permission, unless the release of the information is required by law. In Open Records Decision No. 562 (1990), this office determined that chapter 552 of the Government Code is considered law that requires the release of information. Thus, the person need not give permission to have the personnel file released pursuant to the Public Information Act (the "Act"). Therefore, we conclude that Exhibit A is not excepted from disclosure by virtue of section 552.101 in conjunction with section 143.089(f) of the Local Government Code. You also contend that Exhibit A is excepted from disclosure under sections 552.101 and 552.102 of the Government Code in conjunction with privacy. Section 552.102 excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Gov't Code § 552.102(a). In Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd n.r.e.), the court ruled that the test to be applied to information claimed to be protected under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Foundation for information claimed to be protected under the doctrine of common-law privacy as incorporated by section 552.101 of the Act. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).(2) Accordingly, we will consider your section 552.101 and section 552.102 claims together. For information to be protected from public disclosure by the common-law right of privacy under section 552.101, the information must meet the criteria set out in Industrial Foundation. In Industrial Foundation, the Texas Supreme Court stated that information is excepted from disclosure if (1) the information contains highly intimate or embarrassing facts the release of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Id. at 685. This office has found that some kinds of medical information or information indicating disabilities or specific illnesses are excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). This office has also determined that some personal financial information is highly intimate or embarrassing and thus meets the first part of the Industrial Foundation test. Open Records Decision Nos. 600 (1992) (personal financial choices concerning insurance are generally confidential), 545 (1990) (common-law privacy protects personal financial information not relating to the financial transaction between an individual and a governmental body), 523 (1989) (common-law privacy protects credit reports, financial statements, and other personal financial information), 373 (1983) (common-law privacy protects assets and income source information). However, information concerning financial transactions between an employee and a public employer is generally of legitimate public interest. Id. Therefore, financial information relating to benefits must be disclosed if it reflects the employee's mandatory contributions to the benefits plan. Open Records Decision No. 600 (1992). For example, this office has held that information pertaining to an employee's participation in the Texas Municipal Retirement System or in a group insurance plan funded by the governmental body is not excepted from disclosure under common-law privacy. Open Records Decision No. 480 (1987). We note, however, that the designation of a retirement beneficiary is protected from disclosure under section 552.101. Open Records Decision No. 600 (1992). Furthermore, information is excepted from disclosure if it relates to a voluntary investment that the employee made in an optional benefits plan offered by the department. Id. After reviewing the submitted information, we have marked the information that must be withheld under sections 552.101 and 552.102 in conjunction with common-law privacy. The remaining information, however, is not excepted under sections 552.101 and 552.102 in conjunction with common-law privacy. See Open Records Decision Nos. 470 (1987) (public employee's job performance does not generally constitute his private affairs), 455 (1987) (public employee's job performances, abilities or references generally not protected by privacy), 444 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employees). Exhibit A also contains W-4 forms. Title 26 section 6103(a) of the United States Code renders tax return information confidential. The term "return information" includes "the nature, source, or amount of income" of a taxpayer. 26 U.S.C. § 6103(b)(2). This term has been interpreted by federal courts to include any information gathered by the Internal Revenue Service regarding a taxpayer's liability under title 26 of the United States Code. Mallas v. Kolak, 721 F. Supp 748 (M.D.N.C. 1989). Our office has specifically held that W-4 forms must be withheld in their entirety. Open Records Decision No. 600 at 9 (1992). Therefore, you must withhold the submitted W-4 forms under section 552.101 of the Government Code in conjunction with federal law. Included among the documents you seek to withhold are two accident report forms that appear to have been completed pursuant to chapter 550 of the Transportation Code. See Transp. Code § 550.064 (officer's accident report). Section 550.065(b) states that except as provided by subsection (c), accident reports are privileged and confidential. Section 550.065(c)(4) provides for the release of accident reports to a person who provides two of the following three pieces of information: (1) date of the accident; (2) name of any person involved in the accident; and (3) specific location of the accident. See Transp. Code § 550.065(c)(4). Under this provision, the Department of Public Safety or another governmental entity is required to release a copy of an accident report to a person who provides the agency with two or more pieces of information specified by the statute. Id. In the situation at hand, the requestor has not provided the department with two of the three pieces of information. Thus, you must withhold the accident reports that we have marked under section 552.101 in conjunction with section 550.065(b) of the Transportation Code. You also claim that Exhibit A contains information that is excepted from disclosure under section 552.117(2) of the Government Code. Section 552.117(2) excepts from public disclosure a peace officer's home address, home telephone number, social security number, and information indicating whether the peace officer has family members regardless of whether the peace officer complied with section 552.024 of the Government Code. In Open Records Decision No. 670 (2001), this office concluded that a governmental body may withhold under section 552.117(2) of the Government Code, the home address, home telephone number, personal cellular phone number, personal pager number, social security number, and family member information of a "peace officer" as set forth in article 2.12 of the Texas Code of Criminal Procedure without requesting a decision from this office. Therefore, you may withhold the information that you have marked under section 552.117(2), except where indicated. We have marked additional information that must be withheld under section 552.117(2). You also raise section 552.130 of the Government Code for some of the information in Exhibit A. Section 552.130(a) excepts from disclosure information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. Therefore, you must withhold the information you have marked under section 552.130(a) of the Government Code, except where indicated. Additionally, we note that Exhibit A contains a photograph of the peace officer. Section 552.119 excepts from public disclosure a photograph of a peace officer(3) that, if released, would endanger the life or physical safety of the officer unless one of three exceptions applies. The three exceptions are: (1) the officer is under indictment or charged with an offense by information; (2) the officer is a party in a fire or police civil service hearing or a case in arbitration; or (3) the photograph is introduced as evidence in a judicial proceeding. This section also provides that a photograph exempt from disclosure under this section may be made public only if the peace officer gives written consent to the disclosure. Open Records Decision No. 502 (1988). The submitted copy of a photograph depicts a peace officer and it does not appear that any of the exceptions are applicable. You have not informed us that the peace officer has executed any written consent to disclosure. Thus, you must withhold the photograph depicting the peace officer that we have marked under section 552.119. Finally, we note that a portion of the information in Exhibit A constitutes medical records, access to which is governed by the Medical Practice Act (the "MPA"), chapter 159 of the Occupations Code. Section 159.002 of the MPA provides: (b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter. (c) A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. The medical records must be released upon the patient's signed, written consent, provided that the consent specifies (1) the information to be covered by the release, (2) reasons or purposes for the release, and (3) the person to whom the information is to be released. Occ. Code §§ 159.004, .005. Section 159.002(c) also requires that any subsequent release of medical records be consistent with the purposes for which the governmental body obtained the records. Open Records Decision No. 565 at 7 (1990). Medical records may be released only as provided under the MPA. Open Records Decision No. 598 (1991). We have marked the information that is governed by the MPA. To summarize, you must withhold the information we have marked under sections 552.101 and 552.102 of the Government Code in conjunction with common-law privacy. You must also withhold the W-4 forms under section 552.101 in conjunction with federal law. You must also withhold the peace officer accident reports under section 552.101 in conjunction with section 550.065(b) of the Transportation Code. In addition, you must withhold the information you have marked under section 552.117(2), except where indicated. You must withhold the additional information we have marked under section 552.117(2). You must also withhold the driver's license and license plate information that you have marked under section 552.130 of the Government Code, except where indicated. The photograph of the peace officer that we have marked must be withheld under section 552.119. The medical records we have marked may only be released in accordance with the MPA. The department must release the remaining submitted information. 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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, Michael A. Pearle
c: Mr. James L. Supkis
Footnotes 1. You also initially raised sections 552.108 and 552.119. However, you submitted no arguments in support of these exceptions. See Gov't Code § 552.301(b), (e)(1)(A). 2. Section 552.101 of the Government Code also encompasses common-law privacy. 3. "Peace officer" is defined by article 2.12 of the Code of Criminal Procedure. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |