August 23, 2002

Mr. Terry D. Morgan
Terry Morgan & Associates
1601 Elm Street, Suite 1930
Dallas, Texas 75201-4736

OR2002-4699

Dear Mr. Morgan:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 167506.

The City of The Colony (the "city"), which you represent, received a request for the employment file of a named individual. You claim that the requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

We begin by noting that some of the submitted information is subject to section 552.022 of the Government Code. Section 552.022 provides in relevant part:

(a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:

(1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108 . . . .

Gov't Code § 552.022(a)(1). The submitted information contains completed employee evaluations that must be released unless they are excepted from disclosure under section 552.108 of the Government Code or are confidential under other law. You do not contend that the submitted information is excepted from disclosure under section 552.108. Furthermore, section 552.103 is a discretionary exception and is not other law under which information is considered confidential. See Open Records Decision No. 663 (1999) (governmental body may waive section 552.103). Therefore, the city must release the submitted evaluations.

With respect to the remainder of the submitted information, we address your argument under section 552.103 of the Government Code. Section 552.103 provides as follows:

(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.

. . . .

(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

The city has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The city must meet both prongs of this test for information to be excepted under 552.103(a).

To establish that litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party.⁽¹⁾ Open Records Decision No. 555 (1990); see Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). On the other hand, this office has determined that if an individual publicly threatens to bring suit against a governmental body, but does not actually take objective steps toward filing suit, litigation is not reasonably anticipated. See Open Records Decision No. 331 (1982). In determining whether litigation is reasonably anticipated, this office cannot consider information about occurrences that took place after the date of the request for information.

You indicate that the requestor's client served a notice of oral deposition duces tecum on the named employee in a pending eminent domain action. You do not contend, nor does it appear, that the city is a party to this litigation. Nevertheless, you argue that the city reasonably anticipates litigation based on the deposition notice as well as the instant request for public information, the status of the eminent domain action, and the fact that the requestor's client presently has pending before the city a request to approve a development plan that was the subject of the eminent domain proceeding. However, you do not indicate that requestor or his client has threatened to sue the city. Nor have you provided this office with evidence that the requestor's client has taken objective steps toward filing a suit against the city. Therefore, we find that you have not adequately demonstrated that litigation against the city is reasonably anticipated. Consequently, the city may not withhold any of the submitted information under section 552.103 of the Government Code.

Nevertheless, some of the submitted information must be withheld under section 552.101 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Employee W-4 forms are confidential under section 6103(a) of title 26 of the United States Code. Open Records Decision No. 600 (1992). Consequently, the department must withhold the submitted W-4 form under section 552.101 of the Government Code and section 6103(a) of title 26 of the United States Code.

Section 552.101 also encompasses the doctrine of common-law privacy. Common-law privacy protects information if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). 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. Id. at 683. In addition, this office has found that personal financial information that does not relate to a financial transaction between an individual and a governmental body is excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 600 (1992), 545 (1990). We have marked personal financial information that the city must withhold under section 552.101 in conjunction with common-law privacy.

Next, we note that you have redacted portions of the submitted information pursuant to section 552.024 of the Government Code. Section 552.117 of the Government Code 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. Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Therefore, the city may only withhold information under section 552.117 on behalf of current or former officials or employees who made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. You have submitted an election disclosure form dated December 31, 2001, in which the named employee elected to keep his home address and telephone number, social security number, and family member information confidential. Based on this information, we agree that the city must withhold the named employee's home address and telephone number, social security number, and family member information under section 552.117.

You also appear to have redacted the named employee's driver's license number from the submitted documents. Section 552.130 provides in relevant part:

(a) Information is excepted from the requirement of Section 552.021 if the information relates to:

(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or]

(2) a motor vehicle title or registration issued by an agency of this state[.]

To the extent the driver's license number you have redacted relates to a driver's license issued by an agency of the State of Texas, we agree that the city must withhold the driver's license number under section 552.130. However, to the extent the driver's license number you have redacted does not relate to a driver's license issued by an agency of the State of Texas, the city must release the information.

We note that you appear to have redacted information other than information excepted under sections 552.117 and 552.130 of the Government Code. To the extent you have redacted other information, we are unable to determine the nature of the information or your reason for withholding it. Therefore, the city must release any redacted information that is not otherwise excepted under section 552.117 or section 552.130, including the named individual's date of birth. See Gov't Code §§ 552.301, .302.

We also note that the submitted information contains an e-mail address that must be withheld under section 552.137 of the Government Code. Section 552.137 provides that "[a]n 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 [the Public Information Act]."⁽²⁾ Therefore, unless the relevant individual affirmatively consented to the release of his e-mail address, the city must withhold the e-mail address in the submitted information, which we have marked, under section 552.137.

In summary, the city must withhold the submitted W-4 form under section 552.101 of the Government Code in conjunction with section 6103(a) of title 26 of the United States Code. The city must also withhold a portion of the submitted information, which we have marked, under section 552.101 in conjunction with the doctrine of common-law privacy. The city must withhold the named employee's home address, home telephone number, social security number, and family member information under section 552.117 of the Government Code. The city must also withhold the redacted driver's license number to the extent it relates to a driver's license issued by an agency of the State of Texas. Finally, the city must withhold the marked e-mail address under section 552.137 of the Government Code unless the individual to whom the address belongs consented to its release. The city must release the remainder of the submitted 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); Tex. Dep't of Pub. 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,

Nathan E. Bowden
Assistant Attorney General
Open Records Division
NEB/sdk
Ref: ID# 167506

c: Mr. Robert M. Reed, Jr.
1601 Elm Street, Suite 3000
Dallas, Texas 75201
(w/o enclosures)

Footnotes

1. In addition, this office has concluded that litigation was reasonably anticipated when the potential opposing party took the following objective steps toward litigation: filed a complaint with the Equal Employment Opportunity Commission, see Open Records Decision No. 336 (1982); hired an attorney who made a demand for disputed payments and threatened to sue if the payments were not made promptly, see Open Records Decision No. 346 (1982); and threatened to sue on several occasions and hired an attorney, see Open Records Decision No. 288 (1981).

2. The identical exception has been added as section 552.136 of the Government Code.
 

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