March 1, 2002

Mr. Sam Haddad
Assistant General Counsel
Comptroller of Public Accounts
P.O. Box 13528
Austin, Texas 78711-3528

OR2002-1010

Dear Mr. Haddad:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 159188.

The Comptroller of Public Accounts (the "comptroller") received a request for information relating to the members of the Taxpayer Advisory and Industry/Practitioner Liaison Groups. You state that the comptroller has released some of the requested information. You ask whether the remaining information is excepted from disclosure under sections 552.101 and 552.117 of the Government Code. We have considered the exceptions you raise and have reviewed the information you submitted.

We first address your failure to comply with section 552.301 of the Government Code in requesting this decision. Section 552.301 of the Government Code prescribes procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Under section 552.301(b), "[a] governmental body must ask for the attorney general's decision and state the exceptions that apply . . . not later than the 10^th business day after the date of receiving the written request [for information]." Section 552.302 provides that "[i]f a governmental body does not request an attorney general decision as provided by Section 552.301 . . . the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information."

You state that the comptroller received this request for information on November 20, 2001. The comptroller then had ten business days, or until and including December 6, 2001, in which to request a decision in accordance with section 552.301(b). The comptroller's request for this decision was hand-delivered to this office on January 3, 2002. Thus, the comptroller has failed to comply with section 552.301. Therefore, the information in question is presumed to be public and must be released under section 552.302, unless there is a compelling reason to withhold any of the information from public disclosure. See also Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ). The presumption that information is public under section 552.302 can generally be overcome by demonstrating that the information is confidential by law or that third-party interests are at stake. See Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). In this instance, the comptroller raises sections 552.101 and 552.117 of the Government Code. As these exceptions can provide compelling reasons for non-disclosure, we will consider your arguments.

Section 552.117(1) of the Government Code excepts from public disclosure the home address, home telephone number, and social security number of a current or former employee or official of a governmental body, as well as information that reveals whether he or she has family members, if the current or former employee or official requested confidentiality for this information in accordance with section 552.024 of the Government Code. See Open Records Decision Nos. 622 at 5-6 (1994), 455 at 1-3 (1987). The governmental body may not withhold this information, however, if it relates to a current or former employee or official of the governmental body who requested confidentiality under section 552.024 after the request for information was made. Whether a particular item of information is public must be determined at the time that the request for it is made. See Open Records Decision No. 530 at 5 (1989).

You inform this office that the information in question includes the home addresses of former employees of the comptroller. Under section 552.117(1), you must withhold the home address of any former employee of the comptroller who timely requested confidentiality for this information under section 552.024. See also Open Records Decision No. 455 at 3 (1987) (stating that if, while still employed, governmental employee elects to protect his or her home address and telephone number from disclosure, governmental body may not disclose this information after employment relationship ends).

You also inform us that other responsive information relates to former employees of governmental bodies other than the comptroller. You indicate that the comptroller has a means of ascertaining what elections these individuals provided under section 552.024 to the governmental bodies that formerly employed them. You ask whether the comptroller's obligations under section 552.117(1) extend to these individuals' home addresses and telephone numbers.

The responsibilities under section 552.117(1) of a governmental body that receives a request for information encompass only the current and former employees and officials of the governmental body that received the request. See Open Records Decision No. 674 at 4 (2001) (governmental body is normally obliged under section 552.117 to protect only information pertaining to employees and officials of that governmental body). In this regard, section 552.024(a) provides only that an employee of a governmental body may deny public access to certain information "in the custody of the governmental body." Id. Moreover, chapter 552 of the Government Code provides no mechanism for a governmental body to inform itself of whether a given individual either is or has been an employee or official of another governmental body or, in that event, whether such an individual has elected under section 552.024 to keep his or her section 552.117 information confidential. Id. Thus, there is no legislative indication that section 552.117(1) requires a governmental body that receives a request for information to protect information relating to individuals who neither are nor have been employees or officials of that governmental body. Therefore, we conclude that the comptroller has no obligations under section 552.117(1) with respect to the home addresses and telephone numbers of former employees of governmental bodies other than the comptroller.⁽¹⁾

With regard to other responsive information that relates to private individuals, you raise the "special circumstances" aspect of section 552.101 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception encompasses the common-law right to privacy. Common-law privacy under section 552.101 protects information that is (1) highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) of no legitimate public interest. See Industrial Found. v. Texas Ind. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). In Open Records Decision No. 169 (1977), this office concluded that in certain "special circumstances," privacy under section 552.101 will protect information that ordinarily would be subject to public disclosure. Id. at 6-7. Such "special circumstances" encompass a very narrow set of situations. Id. at 6. They do not include a desire for privacy or "a generalized and speculative fear of harassment or retribution." Id. On the other hand, they do include situations in which release of the information would likely cause someone to face "an imminent threat of physical danger." Id.

We determine whether a request for information presents such "special circumstances" on a case-by-case basis. Id. at 7. In Open Records Decision No. 169 (1977), the governmental body demonstrated that "special circumstances" justified the withholding of the home addresses of individuals who had been subjected to a death threat, vandalism, and other types of harassment. Id. In this instance, you state that the requested information reveals the physical addresses and telephone numbers of private individuals. You do not inform us, however, that the comptroller has any objective reason to believe that the release of this information would place any of these individuals in any danger. Therefore, we conclude that the comptroller has not demonstrated the existence of any special circumstances that justify the withholding of the private individuals' addresses and telephone numbers under section 552.101. Accordingly, the comptroller must release this information.

In summary, section 552.117(1) of the Government Code requires the comptroller to withhold the home address of any former employee of the comptroller who timely requested confidentiality for this information under section 552.024. The comptroller has no obligation under section 552.117(1) to determine whether former employees of other governmental bodies requested confidentiality for their home addresses and telephone numbers under section 552.024. The information that relates to the private individuals is not excepted from disclosure under section 552.101 of the Government Code and must be released.

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,

James W. Morris, III
Assistant Attorney General
Open Records Division
JWM/sdk
Ref: ID# 159188
Enc: Submitted documents

c: Mr. S. Stevens
P.O. Box 261083
Plano, Texas 75093
(w/o enclosures)

Footnotes

1. We note that the comptroller does not inform us whether the former employees of governmental bodies other than the comptroller include any licensed peace officer under article 2.12 of the Code of Criminal Procedure, commissioned security officer under section 51.212 of the Education Code, or commissioned security officer under section 1702.002 of the Occupations Code. Thus, we do not address the comptroller's obligations under section 552.117 with respect to these types of individuals. See Gov't Code § 552.117(2), (4), (5).
 

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