 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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April 30, 2003 Mr. Lance Beversdorff
OR2003-2909 Dear Mr. Beversdorff: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 180312. The Texas Youth Commission (the "commission") received a request for information relating to two specified internal investigations. Investigation number 03-0372 pertains to an allegation of abuse or neglect of a youth committed to the custody of the commission. Investigation number 03-0306 pertains to a sexual harassment complaint made against the requestor by a coworker. In particular, the requestor seeks the investigator's report of findings, written evidence compiled by the investigator, any and all written statements obtained by the investigator, the original complaint, and any and all investigator notes concerning each investigation. You claim that investigation number 03-0372 is excepted from disclosure under section 552.101 of the Government Code. You also claim that portions of investigation number 03-0306 are excepted from disclosure under sections 552.101 and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We begin by addressing investigation number 03-0372. Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception encompasses information that other statutes make confidential. Section 261.201 of the Family Code provides in part: (a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency: (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. The commission is authorized to conduct an investigation under chapter 261. See Fam. Code § 261.401(b) (state agency that operates, licenses, certifies, or registers facility in which children are located shall make prompt, thorough investigation of report that child has been or may be abused, neglected, or exploited in facility). You advise that the victim in investigation number 03-0372 was seventeen at the time of the incident, and therefore was a child for purposes of chapter 261. See Fam. Code § 101.003(a) ("child" is generally defined as "a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes"). We find that the submitted information consists of files, reports, records, communications, and working papers used or developed in an investigation made under chapter 261 of the Family Code. We note that the commission has adopted rules concerning investigations of alleged abuse, neglect, or exploitation. See Fam. Code § 261.409 (commission by rule shall adopt standards for investigation under Fam. Code § 261.401); 37 T.A.C. § 93.33. You do not inform us, nor does it otherwise appear to this office, that the commission's rules permit disclosure of the information at issue in this instance. We therefore determine that the submitted information pertaining to investigation number 03-0372 is excepted from disclosure in its entirety under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code as information made confidential by law. Next, investigation number 03-0306 concerns an allegation of sexual harassment made against the requestor. You contend that information relating to this investigation is excepted from disclosure under section 552.101 in conjunction with 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. Industrial Found. v. Texas Indus. 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 addressed the applicability of the common-law privacy doctrine to files of an investigation of allegations of sexual harassment. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the public's interest was sufficiently served by the disclosure of such documents. Id. In concluding, the Ellen court held that "the public did 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. In this case, the submitted documents contain an adequate summary of the sexual harassment investigation, which we have marked. Therefore, the commission must withhold the submitted documents pertaining to investigation number 03-0306, except for the summary, and the statement of the individual accused of harassment, which must be disclosed pursuant to Ellen, 840 S.W.2d at 525. However, the identities of the victims and witnesses to the alleged sexual harassment are protected by common-law privacy and must be withheld. Id. Contrarily, the identity of the requestor, who is the alleged perpetrator in this case, is not protected by common-law privacy and may not be withheld under section 552.101. We have marked the names of the victim and witnesses that the commission must withhold pursuant to section 552.101 in conjunction with common-law privacy. In summary, the commission must withhold the submitted information pertaining to investigation number 03-0372 in its entirety pursuant to section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. With the exception of the statement of the requestor and the marked summary, the commission must withhold the submitted information pertaining to investigation number 03-0306 pursuant to section 552.101 in conjunction with common-law privacy. The names of the victim and witnesses must be withheld pursuant to section 552.101 in conjunction with common-law privacy. The remainder of the marked summary and the statement of the requestor must be released 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 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, David R. Saldivar
c: Mr. Craig Collier
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |