|
Office of the Attorney General - State of Texas John Cornyn |
|
May 6, 2002 Mr. Joe F. Grubbs
OR2002-2382 Dear Mr. Grubbs: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 162432. The Ellis County Sheriff's Office (the "sheriff") received two requests for information relating to the job performance, attendance, and work history of two deputy sheriffs. You state that the sheriff will release responsive attendance records. The sheriff claims that the remaining requested information is excepted from disclosure under sections 552.101, 552.102, and 552.108 of the Government Code. We have considered the exceptions you raise and have reviewed the information you submitted. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception encompasses information that other statutes make confidential. Article 20.02(a) of the Code of Criminal Procedure provides that "[t]he proceedings of the grand jury shall be secret." See also Open Records Decision No. 513 at 4 (1988) (stating that information should be withheld if its release would reveal the grand jury's deliberations). The sheriff claims that some of the requested information relates to confidential grand jury proceedings. We note, however, that the sheriff has not identified any specific information that pertains to the proceedings of a grand jury. Furthermore, none of the submitted information appears to relate to grand jury proceedings. We therefore conclude that the sheriff has not demonstrated that any of the requested information is confidential under section 552.101 of the Government Code in conjunction with article 20.02(a) of the Code of Criminal Procedure. The sheriff also raises section 552.101 in conjunction with section 1701.454 of the Occupations Code. Section 1701.454 provides as follows: (a) A report or statement submitted to the [Texas Commission on Law Enforcement Officer Standards and Education] under this subchapter is confidential and is not subject to disclosure under Chapter 552, Government Code, unless the person resigned or was terminated due to substantiated incidents of excessive force or violations of the law other than traffic offenses. (b) Except as provided by this section, a commission member or other person may not release the contents of a report or statement submitted under this subchapter. The report or statement may be released only by the commission employee having the responsibility to maintain the report or statement and only if: (1) the head of a law enforcement agency or the agency head's designee makes a written request on the agency's letterhead for the report or statement accompanied by the agency head's or designee's signature; and (2) the person who is the subject of the report or statement authorizes the release by providing a sworn statement on a form supplied by the commission that includes the person's waiver of liability regarding an agency head who is responsible for or who takes action based on the report or statement. Occ. Code § 1701.454. The sheriff asserts that section 1701.454 is applicable to some of the submitted information. You state that the information in question is not subject to any of the exceptions specified by section 1701.454(a). Based on your representation, we have marked information that the sheriff must withhold under section 552.101 of the Government Code in conjunction with section 1701.454 of the Occupations Code. The sheriff also raises section 552.101 of the Government Code in conjunction with common-law privacy. The common-law right to 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 in its disclosure. See Industrial Found. v. Texas Ind. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Common-law privacy encompasses the specific types of information that the Texas Supreme Court deemed to be intimate or embarrassing in Industrial Foundation. See 540 S.W.2d at 683 (sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs). This office has since concluded that other subjects also are private under section 552.101. See generally Open Records Decision No. 659 at 4-5 (1999); see also Open Records Decision Nos. 470 at 4 (1987) (illness from severe emotional job-related stress), 455 at 9 (1987) (prescription drugs, illnesses, operations, and physical handicaps), 343 at 1-2 (1982) (references in emergency medical records to a drug overdose, acute alcohol intoxication, obstetrical/gynecological illness, convulsions/seizures, or emotional/mental distress). The sheriff also raises section 552.102 of the Government Code. Section 552.102(a) protects "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]" This exception is applicable to the personnel records of public officials and employees. The test of privacy under section 552.102 is the same as the test under section 552.101 in conjunction with Industrial Foundation. However, because of the greater legitimate public interest in information that relates to public officials and employees, 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, privacy under section 552.102 is "very narrow." See Open Records Decision No. 400 at 5 (1983). The sheriff asserts that the submitted documents contain highly personal and intimate information, the disclosure of which would serve no legitimate public interest. We conclude, however, that the sheriff has not shown that any of the remaining information is private under sections 552.101 or 552.102. See also Open Records Decision Nos. 470 at 4 (1987) (public employee's job performance does not generally constitute that individual's private affairs), 444 at 3 (1986) (public has obvious interest in information concerning qualifications and performance of governmental employees, particularly those in sensitive positions such as employees of sheriff's department), 423 at 2 (1984) (statutory predecessor is applicable when information would reveal intimate details of a highly personal nature), 400 at 5 (1983) (information is protected under statutory predecessor only if release would lead to clearly unwarranted invasion of privacy). The sheriff also raises section 552.108 of the Government Code. Section 552.108 provides in part: (a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from [required public disclosure] if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime; [or] (2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.] . . . (b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from [required public disclosure] if: (1) release of the internal record or notation would interfere with law enforcement or prosecution; [or] (2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication[.] Gov't Code § 552.108(a)(1)-(2), (b)(1)-(2). Section 552.108(a)(1) protects information, the release of which would interfere with a pending criminal investigation or prosecution. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases). Section 552.108(a)(2) is applicable only to a closed case that did not conclude in a conviction or a deferred adjudication. Section 552.108(b) protects internal records and notations of a law enforcement agency, the disclosure of which would interfere with law enforcement or crime prevention. See Open Records Decision Nos. 628 at 2 (1994) (governmental body must demonstrate that release of information relating to closed case would interfere with law enforcement or crime prevention), 508 at 4 (1988) (governmental body must show how release of specific information would interfere with law enforcement efforts, unless that information does so on its face). A governmental body that raises section 552.108 must reasonably explain, if the responsive information does not supply an explanation on its face, how and why section 552.108 is applicable. See Gov't Code § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). The sheriff has not demonstrated, nor does the remaining information reflect on its face, that section 552.108 is applicable to any of that information. Therefore, the sheriff may not withhold any of the remaining information under section 552.108. We note, however, that section 552.117 of the Government Code is applicable to some of the remaining information. Section 552.117(2) excepts from disclosure the home address, home telephone number, and social security number of a peace officer, as well as information that reveals whether a peace officer has family members, regardless of whether the peace officer has complied with section 552.024 of the Government Code. Section 552.117(2) adopts the definition of peace officer found at article 2.12 of the Code of Criminal Procedure. We have marked the information that the sheriff must withhold under section 552.117(2). We also note that the remaining information includes a driver's license number. Section 552.130 of the Government Code 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[.]" Gov't Code § 552.130(a)(1). If the driver's license number that we have marked is a Texas driver's license number, then the sheriff must withhold that information under section 552.130. In summary, some of the submitted information is confidential under section 1701.454 of the Occupations Code. That information is excepted from disclosure under section 552.101 of the Government Code. The sheriff must withhold peace officers' home addresses and telephone numbers, social security numbers, and family member information under section 552.117. A Texas driver's license number must be withheld under section 552.130. The sheriff must release the rest of the requested 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, James W. Morris, III
c: Mr. Gary L. Harrison
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |