 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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July 11, 2003 Mr. James M. Frazier, III
OR2003-4807 Dear Mr. Frazier: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 184045. The Texas Department of Criminal Justice (the "department") received a request for a particular sexual harassment investigation. You claim that the requested information is excepted from disclosure under sections 552.101, 552.117, and 552.134 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information. Initially, we note the submitted information is subject to section 552.022 of the Government Code. Section 552.022 provides as follows: [T]he 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). In this instance, you state the submitted information is the investigative file of a completed sexual harassment investigation. Thus, the department must release the information, unless it is expressly confidential under other law or excepted from disclosure under section 552.108.(1) As the exceptions you claim are mandatory exceptions, we will address your arguments under these provisions. Section 552.101 protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. You assert that some of the requested information is about a "releasee" or "a person directly identified in any proposed plan of release for an inmate" and therefore is confidential under section 508.313 of the Government Code. In pertinent part, section 508.313 provides: (a) All information obtained and maintained, including a victim protest letter or other correspondence, a victim impact statement, a list of inmates eligible for release on parole, and an arrest record of an inmate, is confidential and privileged if the information relates to: (1) an inmate of the institutional division subject to release on parole, release to mandatory supervision, or executive clemency; (2) a releasee; or (3) a person directly identified in any proposed plan of release for an inmate. (b) Statistical and general information relating to the parole and mandatory supervision system, including the names of releasees and data recorded relating to parole and mandatory supervision services, is not confidential or privileged and must be made available for public inspection at any reasonable time. (c) The department may provide information that is confidential and privileged under Subsection (a) to: (1) the governor; (2) a member of the [Board of Pardons and Paroles]; (3) the Criminal Justice Policy Council in performing duties of the council under Section 413.017 [of the Government Code]; or (4) an eligible entity requesting information for a law enforcement, prosecutorial, correctional, clemency, or treatment purpose. (d) In this section, "eligible entity" means: (1) a government agency, including the office of a prosecuting attorney; (2) an organization with which the department contracts or an organization to which the department provides a grant; or (3) an organization to which inmates are referred for services by the department. (e) This section does not apply to information relating to a sex offender that is authorized for release under Chapter 62, Code of Criminal Procedure. (f) This section does not apply to information that is subject to required public disclosure under Section 552.029 [of the Government Code]. A releasee is a person released on parole or to mandatory supervision. Gov't Code § 508.001(9). You state that a portion of the information at issue concerns releasees or inmates of the department subject to release. We note, however, that section 508.313 is applicable to records of the Board of Pardons and Paroles (the "board"). You do not inform us, nor is it apparent on the face of the documents, that this information is held by the board or by the pardons and paroles division of the department. Thus, we conclude that section 508.313 is inapplicable to the submitted information. We therefore conclude that none of the submitted information is excepted from disclosure under section 552.101 of the Government Code in conjunction with section 508.313. The common-law right of privacy is incorporated into the Public Information Act by section 552.101. For information to be protected by common-law privacy it must meet the criteria set out in Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The Industrial Foundation court stated that information is excepted from disclosure if (1) the information contains highly intimate or embarrassing facts the release of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. 540 S.W.2d at 685. In Morales v. Ellen, 840 S.W.2d 519 (Tex. App. - El Paso 1992, writ denied), the court applied the doctrine of common-law privacy to an investigation of allegations of 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 id. 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. Id.; 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. See Open Records Decision Nos. 438 (1986) (work behavior of public employee and conditions for employee's continued employment are matters of legitimate public interest not protected by common-law right of privacy), 405 at 2-3 (1983) (public has interest in manner in which public employee performs his job), 230 (1979), 219 (1978). In this instance, the submitted information consists of statements by the victims of the alleged sexual harassment, statements of witnesses, the statement of the accused, a summary of the department's investigation, and other supporting documents. Upon careful review of the submitted documents, we believe that the information that we have marked constitutes an adequate summary analogous to the conclusions of the board of inquiry, the release of which was upheld in Ellen. Accordingly, we conclude that the department must release the summary and the statement of the accused to the requestor. Before doing so, however, the department must withhold the identities of the witnesses and victims, and information that would tend to identify the witnesses or victims. See Ellen, 840 S.W.2d at 525. We have marked the information that the department must withhold in these documents pursuant to section 552.101 of the Government Code in accordance with Ellen. The department must also withhold the remaining submitted information from the investigation in accordance with Ellen.(2) In summary, the department must release the summary and the statement of the accused, except for the information contained in those documents that we have marked in accordance with Ellen. The remaining submitted information must be withheld under section 552.101 in accordance with Ellen.(3) 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. Paul Trevino
Footnotes 1. We note that you do not claim that section 552.108 is applicable. 2. We note that the requestor has a right of access to his own social security number under section 552.023 of the Government Code. See Gov't Code § 552.023(a); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual asks governmental body to provide him with information concerning himself). 3. As our ruling is dispositive, we do not address your remaining arguments. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |