 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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March 31, 2003 Mr. James L. Hall
OR2003-2165 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# 178680. The Texas Department of Criminal Justice (the "department") received a written request for all records pertaining to a current investigation of an allegation of sexual harassment. The requestor is an attorney representing the victim of the alleged harassment. You contend that the requested information is excepted from required disclosure pursuant to sections 552.101, 552.103, and 552.117 of the Government Code. You first contend that the requested information comes within the protection of the "litigation exception," section 552.103 of the Government Code. To secure the protection of section 552.103(a), a governmental body must demonstrate that requested information "relates" to a pending or reasonably anticipated judicial or quasi-judicial proceeding that was pending or reasonably anticipated on the date the governmental body received the records request. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin 1997, no pet.); Open Records Decision No. 588 at 1 (1991). You explain that the requestor has threatened to file a civil rights complaint regarding the alleged harassment with both the Texas Commission on Human Rights (the "TCHR") and the Equal Employment Opportunity Commission ("EEOC") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. The TCHR operates as a federal deferral agency under section 706(c) of title VII, 42 U.S.C. § 2000e-5. The EEOC defers jurisdiction to the TCHR over complaints alleging employment discrimination. Id. The filing of such a complaint constitutes evidence that the likelihood of litigation against the department is more than mere conjecture. See Open Records Decision No. 386 (1983). We therefore conclude that the department reasonably anticipated litigation regarding the subject matter of the requested information on the date the department received the records request. We also conclude that you have demonstrated how the records at issue relate to the anticipated litigation for purposes of section 552.103. We therefore conclude that the department may withhold most of the information at issue pursuant to section 552.103 of the Government Code.(1) We note, however, that some of the records at issue have previously been made available to the opposing party in the anticipated litigation. Absent special circumstances, once information has been obtained by all parties to the litigation, either through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Consequently, there is no justification for now withholding such information from the requestor pursuant to section 552.103(a). We therefore must address the extent to which these documents may be withheld pursuant to the other exceptions to disclosure that you raised. Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information coming within the common-law right of privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976) (common-law privacy protects information that is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and is of no legitimate concern to the public). As noted above, the records at issue pertain to the department's investigation of alleged sexual harassment. In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court addressed the applicability of the common-law privacy doctrine to files of an investigation of allegations of sexual harassment. The investigatory files at issue in Ellen contained, among other things, the identities of witnesses to the alleged sexual harassment. The court held that the names of witnesses and their detailed affidavits regarding allegations of sexual harassment were excluded from disclosure under the privacy doctrine as described in Industrial Foundation because "the public [did] not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements." Ellen, 840 S.W.2d at 525. In accordance with Ellen, the department must withhold pursuant to section 552.101 of the Government Code the names of witnesses to the alleged sexual harassment that are contained in the documents that must be released to the requestor. You also contend that portions of the records at issue are excepted from required public disclosure pursuant to section 552.117(3) of the Government Code, which requires the department to withhold "information that relates to the home address, home telephone number, or social security number, or that reveals whether" a department employee "has family members." After reviewing the documents that the department must release to the requestor, we agree that portions of some of those documents contain information that must be withheld pursuant to section 552.117(3). We have marked the information in the documents that must be released to the requestor that the department must withhold pursuant to sections 552.101 and 552.117(3) of the Government Code. The department may withhold the remaining submitted documents pursuant to section 552.103 of the Government Code. 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 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, Cindy Nettles
c: Mr. Todd Slobin
Footnotes 1. We note, however, that the applicability of section 552.103(a) ends when the litigation is concluded. Attorney General Opinion MW-575 at 2 (1982); Open Records Decision Nos. 350 at 3 (1982), 349 at 2 (1982). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |