 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 24, 2004 Ms. M. Ann Montgomery
OR2004-2239 Dear Ms. Montgomery: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 198176. The Ellis County Tax Assessor-Collector (the "tax assessor-collector") received a request for certain information regarding taxpayers that are due property tax refunds from the tax assessor-collector.(1) You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim.(2) We note at the outset that the release of the submitted records is governed by section 552.022 of the Government Code. Section 552.022 provides that, except as provided by section 552.108, a completed report or investigation made of, for, or by a governmental body is not excepted from required disclosure under the act unless the report or investigation is expressly confidential under other law. Gov't Code § 552.022(a)(1). The information that you have submitted to this office comprises a completed report. Section 552.022(a)(1) therefore applies and the information must be released unless it is expressly made confidential under other law.(3) Because section 552.101 constitutes other law for purposes of section 552.022, we will consider the applicability of that section to the completed report. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Under this exception, a governmental body may not disclose information if the disclosure will violate a person's constitutional or common-law rights to privacy. Industrial Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). 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., 540 S.W.2d at 685. 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. 540 S.W.2d at 683. Constitutional privacy consists of two interrelated types of privacy: (1) the right to make certain kinds of decisions independently and (2) an individual's interest in avoiding disclosure of personal matters. Open Records Decision No. 455 at 4 (1987). The first type protects an individual's autonomy within "zones of privacy" which include matters related to marriage, procreation, contraception, family relationships, and child rearing and education. Id. The second type of constitutional privacy requires a balancing between the individual's privacy interests and the public's need to know information of public concern. Id. The scope of information protected is narrower than that under the common law doctrine of privacy; the information must concern the "most intimate aspects of human affairs." Id. at 5 (citing Ramie v. City of Hedwig Village, Texas, 765 F.2d 490 (5th Cir. 1985)). This office has found that the following types of information are excepted from required public disclosure under constitutional or common-law privacy: 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); personal financial information not relating to the financial transaction between an individual and a governmental body, see Open Records Decision Nos. 545 at 4 (1990) ("In general, we have found the kinds of financial information not excepted from public disclosure by common-law privacy to be those regarding the receipt of governmental funds or debts owed to governmental entities"), 523 at 4 (1989) (noting distinction under common-law privacy between confidential background financial information furnished to public body about individual and basic facts regarding particular financial transaction between individual and public body); information concerning the intimate relations between individuals and their family members, see Open Records Decision No. 470 (1987); and identities of victims of sexual abuse, see Open Records Decision Nos. 440 (1986), 393 (1983), 339 (1982). You argue that disclosure of the submitted information would violate the privacy rights of the individual who submitted it to the tax assessor-collector. We disagree. Based upon our review of the submitted information, we find that the information at issue is not protected by a constitutional right of privacy. Further, we find that, for purposes of common-law privacy, there is a legitimate public interest in the submitted info. Thus, we conclude that the information that you seek to withhold is not protected from disclosure under the common-law or constitutional right to privacy and may not be withheld from the requestor on that basis. As you raise no other exceptions to disclosure, the information at issue 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, Cindy Nettles
c: Mr. Benjamin Tarver
Footnotes 1. We note that the Act does not require the tax assessor-collector to answer factual questions, perform legal research, or create new information in responding to a request. See Open Records Decision Nos. 605 at 2 (1992), 563 at 8 (1990), 555 at 1-2 (1990), 534 at 2-3 (1989); see also AT&T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex.1995); Fish v. Dallas Indep. Sch. Dist., 31 S.W.3d 678, 681(Tex. App.-Eastland, pet. denied). Additionally, we note that the Act does not require the tax assessor-collector to disclose information that did not exist at the time the request was received. Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986); see also Attorney General Opinion JM-48 (1983) (governmental body not required to comply with standing request for information to be collected or prepared in future). However, the tax assessor-collector must make a good faith attempt to relate a request to information it holds. See Open Records Decision No. 561 at 8 (1990). 2. You have also raised questions under the cost provisions of chapter 552. These provisions are found at subchapter F of chapter 552. See Gov't Code § 552.261 et seq. The Texas Building and Procurement Commission ("TBPC") is responsible for the administration and enforcement of these provisions. Section 552.262 directs the TBPC to adopt rules for use by each governmental body in determining charges for providing copies of public information under chapter 552. The rules adopted by the TBPC are found at title 1 of the Texas Administrative Code. The tax assessor-collector must comply with subchapter F of chapter 552 and the rules adopted by the TBPC in charging for copies of public information. You should direct any questions that relate to these cost provisions to the TBPC. 3. We note that you have not raised section 552.108 for the submitted information. See Gov't Code § 552.022(a)(1). |