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Office of the Attorney General - State of Texas John Cornyn |
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May 6, 2002 Ms. Lynn Rossi Scott
OR2002-2374 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# 162436. The Carroll Independent School District (the "district"), which you represent, received a request for inspection of: 1) Any booklets or pamphlets containing the rules, policies and procedures that govern bus drivers and bus service in the Carroll school district. I want rules specific to the Carroll school district, beyond those that implement state or federal rules. 2) Any written complaints or allegations regarding the district's bus drivers and/or bus service, including phone messages or emails. 3) Individual reports of bus conduct or disciplinary referral documents for 2001-2002. 4) A copy of the district's contract with its bus drives and transportation personnel. 5) A list of salaries for bus drivers and transportation personnel. 6) The list of all bus drivers employed by the Carroll school district in 2001-2002. 7) Please provide a copy of any internal correspondence regarding the district's bus service. You inform this office that you spoke with the requestor to clarify the request. You state that the requestor narrowed the request to include only complaints from the 2001-2002 school year. The requestor agreed to the district's redaction of all student-identifiable information in accordance with the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. §1232g.(1) The requestor narrowed the request to include only those referrals that the Transportation Department has in its own files. And finally, the requestor narrowed her request to exclude "internal correspondence regarding the district's bus service." You state that the district will provide most of the information to the requestor. However, you claim that portions of the submitted information are excepted from disclosure under sections 552.026, 552.101, 552.102, 552.114, 552.117, and 552.130 of the Government Code as well as FERPA. You have also raised section 550.065(b) for accident reports to the extent that they exist. We have considered the exceptions you claim and reviewed the submitted information. Section 552.102(a) of the Government Code protects "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]"(2) The test of employee privacy under section 552.102 is the same as the test under section 552.101 in conjunction with common-law privacy.(3) Under section 552.101, common-law privacy 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). Because of the greater legitimate public interest in matters involving employees of governmental bodies, privacy under section 552.102 is confined to information that reveals "intimate details of a highly personal nature." See Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 549-51 (Tex. App.--Austin 1983, writ ref'd n.r.e.); Open Records Decision Nos. 473 at 3 (1987), 444 at 3-4 (1986), 423 at 2 (1984). Thus, public employee privacy under section 552.102 is "very narrow." See Open Records Decision No. 400 at 5 (1983). The district claims that the information which it has identified and highlighted in yellow is excepted under section 552.101 and common law privacy because it "contains highly intimate and very embarrassing details[.]" The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. 540 S.W.2d at 683. However, we have reviewed the information carefully and conclude that it contains no private information. See id. Furthermore, the public has a legitimate interest in public employees' job performance. See Open Records Decision 444 (1986). We find that the public has a legitimate interest in the submitted information. Therefore, the district may not withhold this information under sections 552.101 or 552.102. See Open Records Decision No. 423 at 2 (1984) (information may not be withheld under section 552.102 if it is of sufficient legitimate public interest, even if person of ordinary sensibilities would object to release on grounds that information is highly intimate or embarrassing). As you have not submitted to this office information marked as covered by these exceptions, we need not address your claims under sections 552.026, 552.114, 552.117, 552.130, FERPA, nor section 550.065(b) of the Transportation Code. In summary, the district must release the requested 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. 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, Joyce K. Lowe
c: Ms. Yamil Berard
Footnotes 1. In Open Records Decision No. 634 (1995), this office concluded that: (1) an educational agency or institution may withhold from public disclosure information that is protected by FERPA and excepted from required public disclosure by sections 552.026 and 552.101 of the Government Code without the necessity of requesting an attorney general decision as to those exceptions, and (2) an educational agency or institution that is state-funded may withhold from public disclosure information that is excepted from required public disclosure by section 552.114 of the Government Code as a "student record," insofar as the "student record" is protected by FERPA, without the necessity of requesting an attorney general decision as to that exception. 2. Anything relating to an individual's employment and its terms constitutes information relevant to the individual's employment relationship and is a part of the individual's personnel file. See Open Records Decision No. 327 at 2 (1982). 3. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |