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Office of the Attorney General - State of Texas John Cornyn |
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August 21, 2002 Ms. Janice Mullenix
OR2002-4662 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# 167401. The Texas Department of Transportation (the "department") received a request for access to materials in the hiring packet for a specified job vacancy number. You state that you will release some responsive information to the requestor. You also state that you will withhold from disclosure Texas driver's license numbers that are contained within the submitted information pursuant to a previous determination that was issued to the department in Open Records Letter No. 2002-0465 (2002). You claim, however, that portions of the requested information are excepted from disclosure pursuant to sections 552.101, 552.117, 552.122, 552.130, and 552.136 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information. You claim that Exhibit B is excepted from disclosure pursuant to section 552.122(b) of the Government Code. Section 552.122(b) excepts from disclosure test items developed by a licensing agency or governmental body. In Open Records Decision No. 626 (1994), this office determined that the term "test item" in section 552.122 includes any standard means by which an individual's or group's knowledge or ability in a particular area is evaluated, but does not encompass evaluations of an employee's overall job performance or suitability. Whether information falls within the section 552.122 exception must be determined on a case-by-case basis. See Open Records Decision No. 626 at 6 (1994). Traditionally, this office has applied section 552.122 where release of "test items" might compromise the effectiveness of future examinations. See id. at 4-5; see also Open Records Decision No. 118 (1976). After carefully reviewing your arguments and Exhibit B, we conclude that the job simulation exercise in Exhibit B constitutes a "test item" as contemplated by section 552.122(b). Accordingly, we conclude that the department may withhold the information in Exhibit B that we have marked from disclosure pursuant to section 552.122(b). However, we do not agree that the remaining information in Exhibit B constitutes "test items" as contemplated by section 552.122(b). Accordingly, we conclude that the department may not withhold any portion of the remaining information in Exhibit B from disclosure under section 552.122(b) of the Government Code. Consequently, the department must release the remaining portions of Exhibit B to the requestor. We note that Exhibit C contains some information that we have marked which may be excepted from disclosure pursuant to section 552.117(2) of the Government Code. Section 552.117(2) excepts from disclosure a peace officer's home address, home telephone number, social security number, and information indicating whether the peace officer has family members, regardless of whether the peace officer made an election under section 552.024 of the Government Code. See Gov't Code § 552.117(2). Section 552.117(2) applies to peace officers as defined by article 2.12 of the Code of Criminal Procedure. We are uncertain whether the peace officers noted in Exhibit C are still peace officers. To the extent that these individuals remain licensed peace officers as defined by article 2.12 of the Code of Criminal Procedure, then the marked information must be withheld from disclosure by the department pursuant to section 552.117(2) of the Government Code. However, if these individuals are not currently peace officers, then this information may still be excepted from disclosure under section 552.1175 of the Government Code. Accordingly, we address whether section 552.1175 excepts from disclosure any portion of the marked information regarding these individuals. Section 552.1175 provides in pertinent part: (a) This section applies only to: . . . (2) peace officers as defined by Article 2.12, Code of Criminal Procedure; . . . (b) Information that relates to the home address, home telephone number, or social security number of an individual to whom this section applies, or that reveals whether the individual has family members is confidential and may not be disclosed to the public under this chapter if the individual to whom the information relates: (1) chooses to restrict public access to the information; and (2) notifies the governmental body of the individual's choice on a form provided by the governmental body, accompanied by evidence of the individual's status. Gov't Code § 552.1175(a), (b). To the extent that the individuals noted in the information are not currently peace officers, the department must still withhold the marked information from disclosure regarding each individual pursuant to section 552.1175 of the Government Code, if each individual otherwise made a proper section 552.1175 election with the department at a time when each was a peace officer. Otherwise, we conclude that the department may not withhold any portion of that marked information pursuant to section 552.1175 of the Government Code. You claim that portions of Exhibit C 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 that is responsive to a request may not be withheld from disclosure under section 552.117(1) if the employee did not request confidentiality for this information in accordance with section 552.024 or if the request for confidentiality under section 552.024 was not made until 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). We note that you have submitted forms for our review which indicate that some department employees requested confidentiality with regard to at least some types of section 552.117 information prior to the department's receipt of the present request. Accordingly, we conclude that the department must withhold from disclosure the information that we have marked with regard to these particular employees pursuant to section 552.117(1). However, we also note that the department submitted the application of another department employee, but did not submit an election form to us with regard to this employee. If this particular employee elected under section 552.024 to keep his section 552.117(1) information confidential prior to the department's receipt of the present request, then we conclude that the department must also withhold from disclosure the information that we have marked with regard to this individual under section 552.117(1). We also note that section 552.117(1) does not apply to those applicants in Exhibit C who were not current or former employees of the department at the time of the department's receipt of the present request. Accordingly, we conclude that the department may not withhold from disclosure personal information regarding these particular individuals under section 552.117(1) of the Government Code. However, we also note that social security numbers that are contained in Exhibit C that are not otherwise excepted from disclosure under section 552.117 or section 552.1175 may nevertheless be excepted from disclosure under section 552.101 of the Government Code in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I).(1) See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. You inform us that the department maintains employees' social security numbers pursuant to provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C. § 653a(a)(2)(B), (b)(1)(A). Under this federal law, an employer is required to furnish to the Directory of New Hires of the State in which a newly hired employee works, a report that includes the employee's social security number. See 42 U.S.C. § 653a(b)(1)(A). Thus, we agree that the department obtained and is maintaining some of its employees' social security numbers pursuant to a law that was enacted after October 1, 1990. Accordingly, we conclude that the department must withhold from disclosure the social security numbers of department employees whose numbers were collected pursuant to this law. However, to the extent that some employees were hired before this law was enacted, these employees' social security numbers were not obtained or maintained pursuant to the law and, thus, are not confidential under section 653a(b)(1)(A) of title 42 of the United States Code. With regard to the social security numbers that are not protected from disclosure under section 653a(b)(1)(A) of title 42 of the United States Code, we note that the department has not cited any other law, and we are unaware of any other law, enacted on or after October 1, 1990, that authorizes the department to obtain or maintain these social security numbers. Therefore, we have no basis for concluding that these numbers are confidential under section 405(c)(2)(C)(viii)(I). We caution the department, however, that section 552.352 of the Government Code imposes criminal penalties for the release of confidential information. Prior to releasing these social security numbers, the department should ensure that they were not obtained or are not maintained by the department pursuant to any other provision of law enacted on or after October 1, 1990. We note that some additional portions of Exhibit C are 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. Accordingly, we conclude that the department must withhold from disclosure the additional information that we have marked related to driver's licenses pursuant to section 552.130 of the Government Code. Finally, we note that Exhibit C contains e-mail addresses that are subject to section 552.137 of the Government Code. Section 552.137 makes certain e-mail addresses confidential and provides in pertinent part: (a) An e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under this chapter. (b) Confidential information described by this section that relates to a member of the public may be disclosed if the member of the public affirmatively consents to its release. Gov't Code § 552.137. Accordingly, we conclude that the department must withhold from disclosure the marked e-mail addresses pursuant to section 552.137 of the Government Code, unless the members of the public in question have affirmatively consented to their release. In summary, the department may withhold from disclosure the information in Exhibit B that we have marked pursuant to section 552.122(b) of the Government Code. To the extent that individuals noted in Exhibit C remain licensed peace officers as defined by article 2.12 of the Code of Criminal Procedure, the department must withhold from disclosure the information that we have marked pursuant to section 552.117(2) of the Government Code. To the extent that the individuals noted in Exhibit C are not currently peace officers, the department must withhold from disclosure the information that we have marked regarding those individuals pursuant to section 552.1175 of the Government Code, if each individual otherwise made a proper section 552.1175 election with the department at a time when each was a peace officer. The department must withhold from disclosure the information that we have marked with regard to current department employees pursuant to section 552.117(1) of the Government Code. If the employee for which the department did not submit a 552.024 election to us for review elected under section 552.024 to keep his section 552.117(1) information confidential prior to the department's receipt of the present request, the department must also withhold from disclosure the information that we have marked with regard to this individual under section 552.117(1). The department must withhold from disclosure the social security numbers of department employees whose numbers were collected pursuant to section 653a(b)(1)(A) of title 42 of the United States Code. The social security numbers that are not protected from disclosure under section 653a(b)(1)(A) of title 42 of the United States Code may be confidential under other federal law. The department must withhold from disclosure the additional information that we have marked related to driver's licenses pursuant to section 552.130 of the Government Code. The department must withhold from disclosure the marked e-mail addresses pursuant to section 552.137 of the Government Code, unless the members of the public in question have affirmatively consented to their release. The department must release the remaining portions of Exhibits B and C 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/seg Ref: ID# 167401 Enc. Marked documents cc: Ms. Judy B. Thorp
Footnotes 1. Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Section 552.101 encompasses information protected by other statutes. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |