December 20, 2004

Mr. Miguel A. Saldana
Attorney at Law
Three North Park Plaza
Brownsville, Texas 78521

OR2004-10767

Dear Mr. Saldana:

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# 215587.

The Brownsville Independent School District (the "district"), which you represent, received a request for "[a]ny documents or memos pertaining to a complaint or concern filed against [two district board members] during September 2004." You claim that the requested information is excepted from disclosure under sections 552.101, 552.102, 552.111, and 552.135 of the Government Code.⁽¹⁾ We have considered the exceptions you claim and have reviewed the information you submitted.

Section 552.101 excepts from 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 other statutes make confidential. You assert that the submitted information is analogous to information that is subject to section 8 of article 1.15 of the Insurance Code. Article 1.15 relates to examinations of insurance carriers by the Texas Department of Insurance. See Open Records Decision No. 640 (1996). Section 8(a) of article 1.15 provides that "[i]n conducting an examination under this article, the department shall use audits and work papers prepared by an accountant or accounting firm that meets the requirements of Section 12, Article 1.15A, of this code that are made available to the department by the carrier." Ins. Code art. 1.15 § 8(a). Section 8(b) provides that "[i]nformation obtained under this section is confidential and may not be disclosed to the public except when introduced as evidence in a hearing." Id. art. 1.15 § 8(b). Although you state that the submitted information relates to an insurance matter, you have not explained how or why section 8 of article 1.15 of the Insurance Code would be applicable to information held by the district. See Open Records Decision No. 640 at 4 (1996) (Texas Department of Insurance must withhold any information obtained from audit "work papers" that are "pertinent to the accountant's examination of the financial statements of an insurer" under Ins. Code art. 1.15 § 8). Thus, you have not demonstrated that the submitted information is confidential under article 1.15 of the Insurance Code, and therefore you may not withhold any of the submitted information under section 552.101 of the Government Code as information made confidential by statute.

Section 552.101 also encompasses constitutional and common-law rights of privacy. Constitutional privacy protects two kinds of interests. See Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Open Records Decision Nos. 600 at 3-5 (1992), 478 at 4 (1987), 455 at 3-7 (1987). The first is the interest in independence in making certain important decisions related to the "zones of privacy," pertaining to marriage, procreation, contraception, family relationships, and child rearing and education, that have been recognized by the United States Supreme Court. See Fadjo v. Coon, 633 F.2d 1172 (5^th Cir. 1981); Open Records Decision No. 455 at 3-7 (1987). The second constitutionally protected privacy interest is in freedom from public disclosure of certain personal matters. See Ramie v. City of Hedwig Village, Tex., 765 F.2d 490 (5^th Cir. 1985); Open Records Decision No. 455 at 6-7 (1987). This aspect of constitutional privacy balances the individual's privacy interest against the public's interest in the information. See Open Records Decision No. 455 at 7 (1987). Constitutional privacy under section 552.101 is reserved for "the most intimate aspects of human affairs." Id. at 8 (quoting Ramie v. City of Hedwig Village, 765 F.2d at 492).

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 Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). Common-law privacy protects the specific types of information that are held to be intimate or embarrassing in Industrial Foundation. See id. at 683 (information relating to sexual assault, pregnancy, mental or physical abuse in workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs). This office has since concluded that other types of information also are private under section 552.101. See Open Records Decision Nos. 659 at 4-5 (1999) (summarizing information attorney general has held to be private), 470 at 4 (1987) (illness from severe emotional job-related stress), 455 at 9 (1987) (prescription drugs, illnesses, operations, and physical handicaps), 343 at 1-2 (1982) (references in emergency medical records to drug overdose, acute alcohol intoxication, obstetrical/gynecological illness, convulsions/seizures, or emotional/mental distress).

You also raise section 552.102. This section excepts from public 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). Section 552.102(a) is applicable to information that relates to public officials and employees. See Open Records Decision No. 327 at 2 (1982) (anything relating to employee's employment and its terms constitutes information relevant to person's employment relationship and is part of employee's personnel file). The privacy analysis 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.) (addressing statutory predecessor).

You assert that the submitted information relates to personal and private matters and unproven allegations. We note, however, that the information relates to a meeting that involved members of the school board and officials of the district. Moreover, the information concerns a complaint about the behavior of one of the board members at the meeting. As this office has stated on many occasions, information that relates to the official conduct of governmental officials and employees is a matter of legitimate public interest. See, e.g., Open Records Decision Nos. 470 at 4 (1987) (public employee's job performance does not generally constitute his or her private affairs), 405 at 2 (1983) (manner in which public employee performed his or her job cannot be said to be of minimal public interest). Therefore, having considered your arguments and reviewed the information in question, we conclude that the district may not withhold any of the submitted information on privacy grounds under section 552.101 or section 552.102. See also Open Records Decision Nos. 562 at 10 (1990) (personnel file information does not involve most intimate aspects of human affairs, but in fact touches on matters of legitimate public concern), 542 at 5 (1990) (information in public employee's resume not protected by constitutional or common-law privacy under statutory predecessors to Gov't Code §§ 552.101 and 552.102), 444 at 3 (1986) (public has obvious interest in information concerning qualifications and performance of governmental employees), 438 at 5 (1986) (public clearly has legitimate interest in knowing details of apparently well-founded accusation of misconduct leveled against city supervisor), 400 at 5 (1983) (statutory predecessor to Gov't Code § 552.102 was "very narrow" and protected information only if release would lead to clearly unwarranted invasion of privacy), 212 at 3 (1978) (constitutional privacy rights of public officials are of very limited scope).

Next, we address your claim under section 552.111. This section excepts from public disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." Gov't Code § 552.111. Section 552.111 encompasses the deliberative process privilege. See Open Records Decision No. 615 at 2 (1993). The purpose of section 552.111 is to protect advice, opinion, and recommendation in the decisional process and to encourage open and frank discussion in the deliberative process. See Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.--San Antonio 1982, no writ); Open Records Decision No. 538 at 1-2 (1990). In Open Records Decision No. 615 (1993), this office re-examined the statutory predecessor to section 552.111 in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ). We determined that section 552.111 excepts from disclosure only those internal communications that consist of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. See Open Records Decision No. 615 at 5. A governmental body's policymaking functions do not encompass routine internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel. Id.; see also City of Garland v. The Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) (section 552.111 not applicable to personnel-related communications that did not involve policymaking). A governmental body's policymaking functions do include administrative and personnel matters of broad scope that affect the governmental body's policy mission. See Open Records Decision No. 631 at 3 (1995). Furthermore, section 552.111 does not protect facts and written observations of facts and events that are severable from advice, opinions, and recommendations. See Open Records Decision No. 615 at 5. But, if factual information is so inextricably intertwined with material involving advice, opinion, or recommendation as to make severance of the factual data impractical, the factual information also may be withheld under section 552.111. See Open Records Decision No. 313 at 3 (1982).

You assert that the submitted information relates to a meeting that was held to inquire about the district's insurance coverage and to provide advice, recommendations, and opinions relating to the district's policy mission. We note, however, that the purpose of the submitted information is to report the behavior of a member of a school board at the meeting. Thus, we find that the information in question concerns that specific incident and does not implicate the district's policymaking functions. Therefore, having considered your arguments, we conclude that you have not demonstrated that any of the submitted information is excepted from disclosure under section 552.111.

Lastly, we address your claim under section 552.135. This exception provides as follows:

(a) "Informer" means a student or former student or an employee or former employee of a school district who has furnished a report of another person's or persons' possible violation of criminal, civil, or regulatory law to the school district or the proper regulatory enforcement authority.

(b) An informer's name or information that would substantially reveal the identity of an informer is excepted from [required public disclosure].

(c) Subsection (b) does not apply:

(1) if the informer is a student or former student, and the student or former student, or the legal guardian, or spouse of the student or former student consents to disclosure of the student's or former student's name; or

(2) if the informer is an employee or former employee who consents to disclosure of the employee's or former employee's name; or

(3) if the informer planned, initiated, or participated in the possible violation.

(d) Information excepted under Subsection (b) may be made available to a law enforcement agency or prosecutor for official purposes of the agency or prosecutor upon proper request made in compliance with applicable law and procedure.

(e) This section does not infringe on or impair the confidentiality of information considered to be confidential by law, whether it be constitutional, statutory, or by judicial decision, including information excepted from the requirements of Section 552.021.

Gov't Code § 552.135. Because the legislature specifically limited the protection of section 552.135 to the identity of a person who reports a possible violation of "law," a school district that seeks to withhold information under section 552.135 must clearly identify to this office the specific civil, criminal, or regulatory law that is alleged to have been violated. In this instance, you have not explained how or why section 552.135 is applicable to any of the submitted information. See id. § 552.301(e)(1)(A). Therefore, you may not withhold any of the information under section 552.135. As you claim no other exception to disclosure, the submitted information must be released to the requestor in its entirety.

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
Assistant Attorney General
Open Records Division
JWM/sdk
Ref: ID# 215587
Enc: Submitted documents

c: Ms. Criselda V. Villarreal
The Brownsville Herald
1135 East Van Buren Street
Brownsville, Texas 78520
(w/o enclosures)

Footnotes

1. Although you also initially asserted section 552.103 and the attorney work product privilege, which is encompassed by section 552.111, you have submitted no arguments in support of those claims. Therefore, we do not address them. See Gov't Code §§ 552.007, .301(e)(1)(A), .302; Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.--Dallas 1999, no pet.) (governmental body may waive Gov't Code § 552.103); Open Records Decision Nos. 677 at 10 (2002) (attorney work product privilege under Gov't Code § 552.111 may be waived), 542 at 4 (1990) (statutory predecessor to Gov't Code § 552.103 subject to waiver).