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Office of the Attorney General - State of Texas John Cornyn |
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July 24, 2002 Mr. James L. Hall
OR2002-4060 Dear Mr. Hall: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 166114. The Texas Department of Criminal Justice (the "department") received a request for "all information obtained now and future" relating to charges of sexual harassment and racial discrimination against the requestor. The department claims that the requested 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 note that chapter 552 of the Government Code does not require the department to release information that did not exist when it received this request or to comply with a standing request to provide information on a periodic basis. See Open Records Decision Nos. 476 at 1 (1987), 452 at 3 (1986). 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 the common-law right to privacy. 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). In Morales v. Ellen, 840 S.W.2d 519 (Tex. App. - El Paso 1992, writ denied), the court applied the common-law right to privacy addressed in Industrial Foundation to an investigation of alleged sexual harassment. The investigation files at issue in Ellen contained third-party witness statements, an affidavit in which the individual accused of the misconduct responded to the allegations, and the conclusions of the board of inquiry that conducted the investigation. See 840 S.W.2d at 525. The court upheld the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the disclosure of such documents sufficiently served the public's interest in the matter. Id. The court further held, however, that "the public does 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. Thus, if there is an adequate summary of an investigation of alleged sexual harassment, the summary must be released under Ellen, but the identities of the victims and witnesses must be redacted, and their detailed statements must be withheld from disclosure. See also Open Records Decision Nos. 393 (1983), 339 (1982). If no adequate summary of the investigation exists, all of the information relating to the investigation ordinarily must be released, with the exception of information that would tend to identify the victims and witnesses. In either case, the identity of the individual accused of sexual harassment is not protected from disclosure. Common-law privacy does not protect information about a public employee's alleged misconduct on the job or complaints made about a public employee's job performance. See Open Records Decision Nos. 438 (1986), 405 (1983), 230 (1979), 219 (1978). The department states that the submitted information relates to a pending investigation of an employee's complaint of alleged sexual harassment and racial discrimination. The department informs us that as the investigation has just begun, the responsive documents consist of the intake form, a statement by the victim, and two witness statements. We understand the department to assert that the statements of the victim and the witnesses are private in their entirety under Ellen. We agree that Ellen is applicable to the submitted information. We note, however, that this information does not include an adequate summary of the department's investigation. Therefore, the department must release all of the submitted documents, but must redact the information that would reveal the identities of the victim and the witnesses. The department must withhold that information, which we have marked, under section 552.101 of the Government Code in conjunction with common-law privacy under Ellen. The department also raises section 552.117 of the Government Code. Section 552.117(3) excepts from disclosure the home address, home telephone number, and social security number of an employee of the department, as well as information that reveals whether the employee has family members, regardless of whether the employee has complied with section 552.1175. We have marked the social security numbers of employees of the department other than the requestor that must be withheld under section 552.117(3). The requestor has a special right of access to her own social security number. See Gov't Code § 552.023(a). Information to which the requestor has a right of access under section 552.023 may not be withheld from her under section 552.117. See also Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual asks governmental body to provide her with information concerning herself). In summary, the department must withhold some of the submitted information under section 552.101 of the Government Code in conjunction with common-law privacy. The submitted documents also contain social security numbers of employees other than the requestor that the department must withhold under section 552.117. The rest of the submitted information 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
c: Ms. Karen Miles
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |