 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 3, 2005 Ms. Carol Longoria
OR2005-00039 Dear Ms. Longoria: 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# 216028. The University of Texas at Austin (the "university") received a request for information relating to two named employees of the university. You inform us that some of the requested information does not exist. We note that the Act does not require a governmental body to release information that did not exist when it received a request or to create responsive information.(1) You also state that the university has released some of the requested information. You inform us that the university has withheld some of the requested information under the previous determination issued in Open Records Decision No. 634.(2) See Gov't Code § 552.301(a); Open Records Decision No. 673 (2001). You claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.117, and 552.136 of the Government Code. We have considered the exceptions you claim and have reviewed the information you submitted. Initially, we address the information that you characterize as constituting "computer User ID's." In Open Records Decision No. 581 (1990), this office determined that certain computer information such as source codes, documentation information, and other computer programming that has no significance other than its use as a tool for the maintenance, manipulation, or protection of public property is not the kind of information that is made public under section 552.021 of the Act. In this instance, you state that each computer User ID is "part of a two-part logon protocol coupled with an individual's password used by employees to access mainframe services[.]" Based on your representations and the analysis found in Open Records Decision No. 581 (1990), we conclude that the User ID's that you have marked do not constitute public information under section 552.002 of the Act. Accordingly, the computer User ID's are not subject to disclosure under the Act and need not be released.(3) Next, we address the university's obligations under section 552.301 of the Government Code. This section prescribes the procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Section 552.301(b) requires the governmental body to ask for the attorney general's decision and state the exceptions to disclosure that it claims not later than the tenth business day after the date of its receipt of the written request for information. See Gov't Code § 552.301(b). Section 552.301(e) requires the governmental body to submit to the attorney general, not later than the fifteenth business day after the date of its receipt of the request, (1) written comments stating why the governmental body's claimed exceptions apply to the information that it seeks to withhold; (2) a copy of the request for information; (3) a signed statement of the date on which the governmental body received the request, or evidence sufficient to establish that date; and (4) the specific information that the governmental body seeks to withhold or representative samples of the information if it is voluminous. See id. § 552.301(e)(1)(A)-(D). If a governmental body does not request an attorney general decision as prescribed by section 552.301, the information requested in writing is presumed to be subject to required public disclosure and must be released, unless there is a compelling reason to withhold the information. See id. § 552.302. You inform us that the university received the request for the information at issue on March 4, 2004. You requested this decision on October 26, 2004. Thus, the university did not request this decision within the ten-business-day period prescribed by section 552.301(b). Likewise, the university did not timely comply with section 552.301(e) in requesting this decision. Therefore, the information at issue is presumed to be public and must be released, unless there is a compelling reason to withhold any of the information. See id. § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App. -- Austin 1990, no writ). The presumption that information is public under section 552.302 can generally be overcome by a demonstration that the information is confidential by law or that third-party interests are at stake. See Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). As the university's claims under sections 552.101 and 552.117 can provide compelling reasons for non-disclosure, we will address your arguments. 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. The determination of whether a particular item of information is excepted from disclosure under section 552.117(a)(1) must be made at the time of the government's body receipt of the request for the information. See Open Records Decision No. 530 at 5 (1989). Thus, a governmental body 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 governmental body's receipt of the request for the information. Information may not be withheld under section 552.117(a)(1) on behalf of a current or former employee who did not make a timely request under section 552.024 to keep the information confidential. You seek to withhold the social security numbers that appear in the submitted documents under section 552.117(a)1). You state that the university employees to whom these social security numbers pertain "stipulated as to the confidential nature of this employment information in accordance with Section 552.117[.]" It is not clear, however, that these employees requested confidentiality for their social security numbers under section 552.024 prior to the university's receipt of this request for information. The submitted social security numbers are excepted from disclosure under section 552.117(a)(1) only if the employees to whom the social security numbers pertain requested confidentiality for their social security numbers under section 552.024 prior to the date of the university's receipt of this request for information. You also seek to withhold the social security numbers under section 552.101. This section excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Section 552.101 encompasses information that another statute makes confidential. A social security number is confidential under section 552.101 in conjunction with 1990 amendments to the federal Social Security Act if it was obtained or is maintained by a governmental body under any provision of law enacted on or after October 1, 1990. See 42 U.S.C. § 405(c)(2)(C)(viii)(I); Open Records Decision No. 622 at 2-4 (1994). You assert that the submitted social security numbers are confidential under section 552.101 because employees provide their social security numbers to the university in compliance with federal law for income tax purposes. However, you have not cited any law enacted on or after October 1, 1990, and we are not otherwise aware of any such law, that requires or authorizes the university to obtain or maintain the social security numbers in question. Thus, we have no basis for concluding that these social security numbers were obtained or are maintained under such a law and are therefore confidential under 405(c)(2)(C)(viii)(I) of the federal law. We caution you, however, that the Act imposes criminal penalties for the release of confidential information. See Gov't Code §§ 552.007, .352. Therefore, before releasing a social security number, the university should ensure that it was not obtained and is not maintained by the university under any provision of law enacted on or after October 1, 1990. You also seek to withhold the social security numbers under section 552.101 in conjunction with constitutional and common-law 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 (5th 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 (5th 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). This office has determined that public disclosure of a social security number does not violate a constitutionally protected right to privacy. See Attorney General Opinion H-242 at 2 (1974). We also have concluded that social security numbers are not protected by the common-law right to privacy. See Open Records Decision No. 622 at 2 (1994). Therefore, the university may not withhold the submitted social security numbers under section 552.101 in conjunction with constitutional or common-law privacy. In summary: (1) the computer User ID's are not subject to disclosure under the Act and need not be released; (2) the employees' social security numbers are excepted from disclosure under section 552.117(a)(1) if the current or former employees requested confidentiality for their social security numbers under section 552.024 prior to the university's receipt of this request for information; and (3) the university may also be required to withhold the social security numbers under section 552.101 in conjunction with section 405(c)(2)(C)(viii)(I) of title 42 of the United States Code. To the extent that the social security numbers are not excepted from disclosure under section 552.117 or under section 552.101 in conjunction with the federal law, they 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, James W. Morris, III
c: Mr. John McMillan
Footnotes 1. See Econ. 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. In Open Records Decision No. 634 (1995), this office concluded that: (1) an educational agency or institution may withhold from the public information that is protected by the federal Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g, and excepted from public disclosure under sections 552.026 and 552.101 of the Act without the necessity of requesting an attorney general decision as to the applicability of sections 552.026 and 552.101; and (2) a state-funded educational agency or institution may withhold from the public information that is excepted from public disclosure under section 552.114 of the Act as a "student record," insofar as the "student record" is protected by FERPA, without the necessity of requesting an attorney general decision as to the applicability of section 552.114. See Open Records Decision No. 634 at 6-8 (1995). 3. As we are able to make this determination, we need not address your claim that the computer User ID's are excepted from disclosure under section 552.136. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |