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Office of the Attorney General - State of Texas John Cornyn |
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April 18, 2002 Ms. Janice Mullenix
OR2002-1978 Dear Ms. Mullenix: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 161455. The Texas Department of Transportation (the "department") received several requests for copies of documents pertaining to a specified civil rights investigation file. You state that you have provided the requestor with Exhibit B. You claim, however, that portions of the remaining requested information in Exhibits C through F are excepted from disclosure pursuant to sections 552.101, 552.107, and 552.117 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information. Initially, we note that section 552.022 of the Government Code makes certain information public, unless it is expressly confidential under other law. One category of public information under section 552.022 is "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by [s]ection 552.108[.]" Gov't Code § 552.022(a)(1). The information at issue constitutes a completed sexual harassment investigation undertaken by the department's Office of Civil Rights. Therefore, this investigation must be released to the requestor, unless it is expressly confidential under other law or is excepted from disclosure pursuant to section 552.108 of the Government Code. Since you claim that portions of the information are excepted from disclosure pursuant to section 552.101, we address your claim under that exception. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Section 552.101 encompasses information protected from disclosure under the common-law right to privacy. Information is protected from disclosure under the common-law right to privacy 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. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court addressed the applicability of the common-law privacy doctrine to files of an investigation of allegations of sexual harassment. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. See Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the public's interest was sufficiently served by the disclosure of such documents. See id. In concluding, the Ellen court held that "the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id. Therefore, when there is an adequate summary of an investigation, the summary must be released, but the identities of the victims and witnesses must be redacted and their detailed statements must be withheld from disclosure. However, when no adequate summary exists, detailed statements regarding the allegations must be released, but the identities of witnesses and victims must still be redacted from the statements. Although information relating to an investigation of a sexual harassment claim involving a public employee may be highly intimate or embarrassing, the public generally has a legitimate interest in knowing the details of such an investigation. 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 or abilities generally not protected by privacy), 444 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employees), 423 at 2 (1984) (scope of public employee privacy is narrow); see also Ellen, 840 S.W.2d at 525. Based on our review of your arguments and the information at issue, we conclude that the information that the department has already released to the requestor, together with the affidavit of the individual accused of the misconduct that is contained within Exhibit F, comprises an adequate summary of the sexual harassment investigation. See id. at 525-26. Because these documents serve the public interest in the information at issue, the remaining information in Exhibits C, D, and F must be withheld from disclosure pursuant to section 552.101 in conjunction with the common-law right to privacy. However, we note that portions of the affidavit of the individual accused of the misconduct constitute identifying information of the witnesses to the alleged sexual harassment. Accordingly, we conclude that the department must withhold from disclosure the identifying information of the witnesses to the alleged sexual harassment that we have marked in this affidavit pursuant to section 552.101 of the Government Code in conjunction with the common-law right to privacy. You claim that portions of Exhibit E are excepted from disclosure pursuant to section 552.117 of the Government Code. Section 552.117(1) 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 of the Government Code. See Gov't Code § 552.117(1). However, information subject to section 552.117(1) may not be withheld from disclosure if the current or former employee made the request for confidentiality under section 552.024 after the request for information at issue was received by the governmental body. Whether a particular piece of information is public must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). You have submitted to our office forms that reflect that seven of the specified employees requested, prior to the department's receipt of the request for information, that their social security numbers and family member information be kept confidential. Accordingly, we conclude that the department must withhold the social security numbers that we have marked in Exhibit E from disclosure pursuant to section 552.117(1). You also submitted an additional form that reflects that an employee requested that information pertaining to his home address, home telephone number, social security number, and family members be kept confidential. However, based on our review of this form, we are unable to determine when the employee made his confidentiality request. If this employee made his request prior to the department's receipt of the request for information, the department must withhold from disclosure the information that we have marked in Exhibit E regarding that employee pursuant to section 552.117(1) of the Government Code. Otherwise, the department must release that information to the requestor. We also note that the department must withhold from disclosure the information that we have marked in the affidavit of the individual accused of the misconduct contained in Exhibit F pursuant to section 552.117(1). Finally, we note that a portion of Exhibit E contains a Texas driver's license number that is subject to section 552.130 of the Government Code. Section 552.130 excepts information from disclosure 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. See Gov't Code § 552.130. Accordingly, the department must withhold the Texas driver's license number that we have marked in Exhibit E pursuant to section 552.130 of the Government Code. Because we base our ruling on sections 552.101, 552.117, and 552.130 of the Government Code, we need not address your other claimed exception to disclosure. In summary, the department must withhold from disclosure the identifying information of the witnesses to the alleged sexual harassment that we have marked in the affidavit of the accused individual pursuant to section 552.101 of the Government Code in conjunction with the common-law right to privacy. The department must withhold from disclosure the remaining information in Exhibits C, D, and F pursuant to section 552.101 in conjunction with the common-law right to privacy. The department must withhold from disclosure most of the social security numbers in Exhibit E that we have marked pursuant to section 552.117 of the Government Code. With regard to the employee that we were uncertain about when he made his confidentiality request, the department must withhold from disclosure the information that we have marked in Exhibit E regarding that employee pursuant to section 552.117(1), if he made his request for confidentiality prior to the department's receipt of the request for information. Otherwise, the department must release that information to the requestor. The department must also withhold from disclosure the information that we have marked in the affidavit of the individual accused of the misconduct contained in Exhibit F pursuant to section 552.117(1). The department must withhold from disclosure the Texas driver's license number that we have marked in Exhibit E pursuant to section 552.130 of the Government Code. The remaining information in the affidavit of the individual accused of the misconduct must be released 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. 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, Ronald J. Bounds
RJB/sgs Ref: ID# 161455 Enc: Marked documents cc: Ms. Ximena Copa-Wiggins
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |