 Office of the ATTORNEY GENERAL GREG ABBOTT | |
|
January 27, 2004 Ms. Veronica Ocanas
OR2004-0600 Dear Ms. Ocanas: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 195140. The City of Corpus Christi (the "city") received two requests from the same requestor for (1) information related to recent disciplinary suspensions involving two city fire department employees, and (2) tape recordings of phone conversations between city fire department employees and unidentified individuals, including any documents relating to those tape recordings. The city received a third request from one of the city fire department employees who is the subject of the first requestor's request for (1) documentation of all allegations made against him by a named individual pertaining to two specified investigations, including any tape recorded allegations, and (2) a copy of a tape recording made by a named individual during February of 2003, including any documentation that will verify that the tape recordings were authenticated.(1) You claim that some of the requested information is excepted from disclosure under sections 552.101, 552.102, 552.107, 552.108, 552.111, and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Section 552.107(1) of the Government Code protects information coming within the attorney-client privilege. When asserting the attorney-client privilege, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege in order to withhold the information at issue. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate that the information constitutes or documents a communication. Id. at 7. Second, the communication must have been made "for the purpose of facilitating the rendition of professional legal services" to the client governmental body. Tex. R. Evid. 503(b)(1). The privilege does not apply when an attorney or representative is involved in some capacity other than that of providing or facilitating professional legal services to the client governmental body. In re Texas Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.-Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in capacity other than that of attorney). Governmental attorneys often act in capacities other than that of professional legal counsel, such as administrators, investigators, or managers. Thus, the mere fact that a communication involves an attorney for the government does not demonstrate this element. Third, the privilege applies only to communications between or among clients, client representatives, lawyers, and lawyer representatives. Tex. R. Evid. 503(b)(1)(A), (B), (C), (D), (E). Thus, a governmental body must inform this office of the identities and capacities of the individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege applies only to a confidential communication, id. 503(b)(1), meaning it was "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." Id. 503(a)(5). Whether a communication meets this definition depends on the intent of the parties involved at the time the information was communicated. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.-Waco 1997, no writ). Moreover, because the client may elect to waive the privilege at any time, a governmental body must explain that the confidentiality of a communication has been maintained. Section 552.107(1) generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein). In this instance, we find that the city has demonstrated that some of the submitted information constitutes privileged attorney-client communications made in furtherance of the rendition of professional legal services to the client. However, we find that the city has failed to adequately demonstrate that any portion of the remaining submitted information constitutes confidential communications exchanged between privileged parties for purposes of section 552.107. See generally Open Records Decision No. 150 (1977) (stating that Public Information Act ("Act") places burden on governmental body to establish why and how exception applies to requested information); see also Strong v. State, 773 S.W.2d 543, 552 (Tex. Crim. App.1989) (burden of establishing attorney-client privilege is on party asserting it). Accordingly, we conclude that the city may withhold only the information we have marked under section 552.107 of the Government Code. Section 552.111 of the Government Code excepts from disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." In Open Records Decision No. 615 (1993), this office reexamined the predecessor to the section 552.111 exception in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.-Austin 1992, no writ), and held that section 552.111 excepts only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. Open Records Decision No. 615 at 5-6 (1993). An agency's policymaking functions, however, do not encompass internal administrative or personnel matters; disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. Open Records Decision No. 615 at 5-6 (1993). Additionally, section 552.111 does not generally except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Arlington Indep. Sch. Dist., 37 S.W.3d at 160; Open Records Decision No. 615 at 4-5. You do not assert, nor does the submitted information reflect, that the information consists of or contains advice, recommendations or opinions reflecting the policymaking processes of the city. We therefore determine that you may not withhold any portion of the information under section 552.111 of the Government Code. Next, you assert that some of the submitted information is excepted under section 552.108 of the Government Code. Section 552.108 provides in pertinent part: (a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from [required public disclosure] if: . . . . (2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.] Gov't Code § 552.108(a)(2). In this instance, however, the submitted information is held by the city, not a "law enforcement agency or prosecutor." See Gov't Code § 552.108(a). Thus, section 552.108 is not applicable in this instance, and none of the submitted information may be withheld under that exception. Next, you argue that some of the submitted information is excepted under section 552.101 in conjunction with common-law privacy. We note that you also raise section 552.102 of the Government Code, which excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]" Gov't Code § 552.102(a). The test of privacy under section 552.102(a) is the same as the common-law privacy test under section 552.101. See Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 549-51 (Tex. App.--Austin 1983, writ ref'd n.r.e.). Therefore, we will address your privacy claim under section 552.102 together with your common-law privacy claim under section 552.101. The common-law right of privacy protects information if it (1) contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). The types 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 the following types of information are excepted from required public disclosure under common-law privacy: an individual's criminal history when compiled by a governmental body, see Open Records Decision No. 565 (citing United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989)); personal financial information not relating to a financial transaction between an individual and a governmental body, see Open Records Decision Nos. 600 (1992), 545 (1990); some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps); and identities of victims of sexual abuse, see Open Records Decision Nos. 440 (1986), 393 (1983), 339 (1982). Furthermore, the work behavior of a public employee and the conditions for his or her continued employment are matters of legitimate public interest not protected by the common-law right of privacy. Open Records Decision Nos. 438 (1986). Similarly, information about a public employee's qualifications, disciplinary action and background is not protected by common-law privacy. See Open Records Decision Nos. 444 at 5-6 (1986) (public has interest in public employee's qualifications and performance and circumstances of his resignation or termination), 405 at 2-3 (1983) (public has interest in manner in which public employee performs his job), 329 at 2 (1982) (information relating to complaints against public employees and discipline resulting therefrom is not protected under former section 552.101 or 552.102), 208 at 2 (1978) (information relating to complaint against public employee and disposition of the complaint is not protected under either the constitutional or common-law right of privacy). Having reviewed the submitted information, we find that a small portion of it is protected by common-law privacy. Therefore, the city must withhold the information we have marked under section 552.101. We note that two of the individuals to whom the submitted information pertains are deceased. The common-law right to privacy is a personal right that lapses at death, and therefore common-law privacy does not encompass information that relates to a deceased individual. See Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex. App.-Texarkana 1979, writ ref'd n.r.e.); Open Records Decision No. 272 at 1 (1981). Thus, the city must withhold only the information we have marked on this basis. Next, you assert that portions of the submitted information are excepted under section 552.117 of the Government Code. Section 552.117(a)(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. 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). Because the protection afforded by section 552.117 includes "current or former" officials or employees, section 552.117 information pertaining to a deceased individual who is a former official or employee of a governmental body is protected under this exception, provided the former official or employee timely elected to keep their information confidential under section 552.024. 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. We note, however, that section 552.117 does not protect the social security number of a deceased employee. Thus, for those employees, living or deceased, who timely elected to keep their personal information confidential, the city must withhold the employees' home addresses and telephone numbers, and any information that reveals whether these employees have family members. The city must also withhold any social security numbers of living current or former employees who made timely elections under section 552.024. The city may not withhold information under section 552.117 for those employees who did not make a timely election to keep the information confidential. We have marked the types of information that must be withheld if section 552.117 applies. We also note that the submitted audio tapes contain information that is excepted under section 552.117. Therefore, the city must also redact this information from the audio tapes prior to releasing the tapes. However, to the extent that the city does not maintain the technological capability to redact this information from the tapes, we conclude that the city must withhold the audio tapes from disclosure in their entirety. We next note that a social security number within the submitted documents may be confidential under federal law. A social security number may be withheld in some circumstances under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I). 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. We have no basis for concluding that the social security number in the submitted information is confidential under section 405(c)(2)(C)(viii)(I), and therefore excepted from public disclosure under section 552.101 of the Act on the basis of that federal provision. We caution, however, that section 552.352 of the Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained by the city pursuant to any provision of law enacted on or after October 1, 1990. Finally, we note that the submitted documents contain driver's license numbers. Section 552.130 of the Government Code excepts from disclosure information relating to a driver's license or motor vehicle title or registration issued by an agency of this state. Gov't Code § 552.130. Thus, the city must withhold the driver's license numbers we have marked under section 552.130. In summary, we conclude the following: (1) the city may withhold the information we have marked under section 552.107 of the Government Code; (2) the city must withhold the information we have marked under section 552.101 in conjunction with common-law privacy; (3) the city must withhold the information we have marked under section 552.117 of the Government Code, provided the employees whose information at issue timely elected to keep their personal information confidential pursuant to section 552.024; and (4) the city must withhold the information we have marked under section 552.130. All remaining information must be released. 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, Sarah I. Swanson
c: Mr. Carlos Torres, Jr.
Mr. L. A. Gonzalez
Footnotes 1. We note that the city submitted correspondence to this office informing us that one of the requestors has died. However, the city expressed no desire to withdraw its request for decision as to that requestor. Thus, this ruling addresses all submitted requests. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |