 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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May 3, 2004 Mr. John A. Kazen
OR2004-3597 Dear Mr. Kazen: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 200781. The Laredo Independent School District (the "district"), which you represent, received a request for information relating to two named employees of the district. Your letter to the requestor states that some of the requested information does not exist. The Public Information Act (the "Act"), chapter 552 of the Government Code, does not require the district to release information that did not exist when it received this request or to create responsive information.(1) Your letter also reflects that the district has released some of the requested information. You claim that the remaining requested information is excepted from disclosure under sections 552.101 and 552.102 of the Government Code. We have considered the exceptions you claim and have reviewed the information you submitted. (2) Section 552.101 excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses information that another statute makes confidential. You raise section 552.101 in conjunction with section 21.355 of the Education Code. Section 21.355 provides that "[a] document evaluating the performance of a teacher or administrator is confidential." Educ. Code § 21.355. This office has interpreted section 21.355 to apply to any document that evaluates, as that term is commonly understood, the performance of a teacher or an administrator. See Open Records Decision No. 643 (1996). In Open Records Decision No. 643, we determined that for purposes of section 21.355, the word "teacher" means a person who is required to and does in fact hold a teaching certificate under subchapter B of chapter 21 of the Education Code or a school district teaching permit under section 21.055 and who is engaged in the process of teaching, as that term is commonly defined, at the time of the evaluation. See Open Records Decision No. 643 at 4. We also determined that the word "administrator" in section 21.355 means a person who is required to and does in fact hold an administrator's certificate under subchapter B of chapter 21 of the Education Code and is performing the functions of an administrator, as that term is commonly defined, at the time of the evaluation. Id. You assert that the information submitted as Exhibit G consists of evaluations that are confidential under section 21.355. You do not inform us, however, as to whether the employee who is the subject of these evaluations held a teacher's certificate or permit or administrator's certificate under subchapter B of chapter 21 of the Education Code and was performing the functions of a teacher or administrator at the time of the evaluations. Therefore, we are unable to conclude that section 21.355 is applicable in this instance. To the extent, however, that the employee who is the subject of these evaluations held a teacher's certificate or permit or an administrator's certificate and was performing the functions of a teacher or administrator at the time of the evaluations, the district must withhold the evaluations under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. See Open Records Decision No. 643 at 4. To the extent that the evaluations do not satisfy these criteria, they are not confidential under section 21.355 and may not be withheld under section 552.101. Section 552.101 also encompasses the common-law right to privacy. Information must be withheld from the public under section 552.101 in conjunction with common-law privacy when the information is (1) highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) of no legitimate public interest. See Industrial Found. v. Texas Ind. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The common-law right to privacy encompasses certain types of personal financial information. This office has determined that financial information that relates only to an individual ordinarily satisfies the first element of the common-law privacy test, but the public has a legitimate interest in the essential facts about a financial transaction between an individual and a governmental body. See Open Records Decision Nos. 600 at 9-12 (1992) (identifying public and private portions of certain state personnel records), 545 at 4 (1990) (attorney general has found kinds of financial information not excepted from public disclosure by common-law privacy to generally be those regarding 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), 373 at 4 (1983) (determination of whether public's interest in obtaining personal financial information is sufficient to justify its disclosure must be made on case-by-case basis). Thus, a public employee's allocation of part of the employee's salary to a voluntary investment program offered by the employer is a personal investment decision, and information about that decision is protected by common-law privacy. See, e.g., Open Records Decision Nos. 600 at 9-12 (1992) (participation in TexFlex,), 545 at 3-5 (1990) (deferred compensation plan). Likewise, the details of an employee's enrollment in a group insurance program, the designation of the beneficiary of an employee's retirement benefits, and an employee's authorization of direct deposit of the employee's salary are protected by common-law privacy. See Open Records Decision No. 600 at 9-12. But where a transaction is funded in part by a governmental body, it involves the employee in a transaction with the governmental body, and the basic facts about that transaction are not private under section 552.101. See id. at 9 (basic facts of group insurance provided by governmental body not protected by common-law privacy). We have marked personal financial information in Exhibit D that may be private under section 552.101. To the extent that the marked information does not relate to an employee benefit or other personal financial transaction that was financed in whole or in part by a governmental body, such information is excepted from disclosure under section 552.101 in conjunction with common-law privacy. To the extent that the marked information relates to an employee benefit or financial transaction that a governmental body financed in whole or in part, such information is not protected by common-law privacy and may not be withheld under section 552.101. Section 552.102(b) excepts from public disclosure "a transcript from an institution of higher education maintained in the personnel file of a professional public school employee." Gov't Code § 552.102(b). This section further provides, however, that "the degree obtained or the curriculum on a transcript in the personnel file of the employee" are not excepted from disclosure. Thus, except for the information that reveals the degree obtained and the courses taken, you must withhold the transcripts in Exhibit F under section 552.102(b). Section 552.117(a)(1) excepts from public disclosure the home address and telephone number, social security number, and family member information of a current or former employee of a governmental body who requests that this information be kept confidential under section 552.024. Whether a particular item of information is protected by section 552.117(a)(1) must be determined at the time of the governmental body's receipt of the request for the information. See Open Records Decision No. 530 at 5 (1989). Therefore, the district may only withhold information under section 552.117(a)(1) on behalf of a current or former employee who made a request for confidentiality under section 552.024 prior to the date of the district's receipt of this request for information. The district may not withhold information under section 552.117(a)(1) on behalf of a current or former employee who did not make a timely election for confidentiality under section 552.024. In this instance, you inform us that the named employee to whom the submitted information pertains previously authorized public release of her section 552.117 information. You do not inform us whether this employee has subsequently elected under section 552.024 to keep her section 552.117 information confidential. In the event, however, that this employee made such an election prior to the district's receipt of this request for information, we have marked information in Exhibit D that the district would be required to withhold under section 552.117(a)(1). We also have marked this employee's section 552.117 information in Exhibit G. If the documents in Exhibit G are not excepted from disclosure under section 552.101, the district may be required to withhold the marked information in Exhibit G under section 552.117(a)(1). We also have marked information in Exhibit G relating to another individual that would also be excepted from disclosure under section 552.117(a)(1) if the current or former employee of the district to whom the marked information pertains timely elected under section 552.024 to keep that information confidential. The district may also be required to withhold a social security number under section 552.101 in conjunction with 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I), if a governmental body obtained or maintains the social security number under any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 at 2-4 (1994). It is not apparent to this office that the social security number in question here is confidential under section 405(c)(2)(C)(viii)(I) of the federal law. You have cited no law, and we are aware of no law, enacted on or after October 1, 1990 that requires or authorizes the district to obtain or maintain a social security number. Thus, we have no basis for concluding that this social security number was obtained or is maintained under such a law and is therefore confidential under the federal law. We caution you, however, that chapter 552 of the Government Code imposes criminal penalties for the release of confidential information. See Gov't Code §§ 552.007, .352. Therefore, before releasing a social security number, the district should ensure that it was not obtained and is not maintained pursuant to any provision of law enacted on or after October 1, 1990. Lastly, we note that Exhibit G contains an e-mail address that may be confidential under section 552.137. This section provides as follows: (a) Except as otherwise provided by this section, an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under this chapter. (b) Confidential information described by this section that relates to a member of the public may be disclosed if the member of the public affirmatively consents to its release. (c) Subsection (a) does not apply to an e-mail address: (1) provided to a governmental body by a person who has a contractual relationship with the governmental body or by the contractor's agent; (2) provided to a governmental body by a vendor who seeks to contract with the governmental body or by the vendor's agent; (3) contained in a response to a request for bids or proposals, contained in a response to similar invitations soliciting offers or information relating to a potential contract, or provided to a governmental body in the course of negotiating the terms of a contract or potential contract; or (4) provided to a governmental body on a letterhead, coversheet, printed document, or other document made available to the public. (d) Subsection (a) does not prevent a governmental body from disclosing an e- mail address for any reason to another governmental body or to a federal agency. Gov't Code § 552.137. Section 552.137 excepts from public disclosure certain personal e-mail addresses of members of the public that are provided for the purpose of communicating electronically with a governmental body, unless the individual to whom the e-mail address belongs has affirmatively consented to its public disclosure. Section 552.137 is not applicable to the types of e-mail addresses listed in section 552.137(c) or to an institutional e-mail address, an Internet website address, or an e-mail address that a governmental entity maintains for one of its officials or employees. In the event that the documents in Exhibit G are not excepted from disclosure under section 552.101, we have marked an e-mail address in Exhibit G that must be withheld under section 552.137 unless the individual to whom the e-mail address belongs has affirmatively consented to its public disclosure. In summary: (1) the evaluations in Exhibit G are excepted from disclosure under section 552.101 in conjunction with section 21.355 of the Education Code, to the extent that the individual who is the subject of the evaluations held a teacher's certificate or permit or an administrator's certificate and was performing the functions of a teacher or administrator at the time of the evaluations; (2) the personal financial information in Exhibit D is excepted from disclosure under section 552.101 in conjunction with common-law privacy, to the extent that the information does not relate to an employee benefit or personal financial transaction that was financed in whole or in part by a governmental body; (3) the district must withhold the transcripts in Exhibit F, except for the information that reveals the degree obtained and the courses taken, under section 552.102(b); (4) the named employee's home address and telephone number, social security number, and family member information in Exhibits D and G is excepted from disclosure under section 552.117(a)(1) if the employee made a timely election under section 552.024 not to allow public access to that information; (5) other information in Exhibit G would also be excepted from disclosure under section 552.117(a)(1) if the current or former employee to whom the information pertains timely elected under section 552.024 to keep the information confidential; (6) the district may be required to withhold a social security number under section 552.101 in conjunction with section 405(c)(2)(C)(viii)(I) of title 42 of the United States Code; and (7) the e-mail address in Exhibit G must be withheld under section 552.137 unless the individual to whom the e-mail address belongs has affirmatively consented to its public disclosure. With the exception of information that the district must withhold under sections 552.101, 552.102(b), 552.117(a)(1), and 552.137, the submitted 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, James W. Morris, III
c: Ms. Patricia Muniz
Footnotes 1. See Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 555 at 1 (1990), 452 at 3 (1986), 362 at 2 (1983). 2. You inform us that the district notified the employee to whom the submitted information pertains of this request for information. See Gov't Code § 552.304 (any person may submit written comments stating why information at issue in request for attorney general decision should or should not be released). We have received no correspondence from the employee. |