 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 7, 2005 Mr. James M. Frazier, III
OR2005-01079 Dear Mr. Frazier: 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# 218539. The Texas Department of Criminal Justice (the "department") received a request for information relating to an interview for a specified job posting. You indicate that some responsive information has been released to the requestor. You claim that some of the requested information is excepted from disclosure under sections 552.117, 552.122, 552.130, 552.137, and 552.140 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Section 552.122(b) excepts from disclosure test items developed by a licensing agency or governmental body. In Open Records Decision No. 626 (1994), this office determined that the term "test item" in section 552.122 includes any standard means by which an individual's or group's knowledge or ability in a particular area is evaluated, but does not encompass evaluations of an employee's overall job performance or suitability. Whether information falls within the section 552.122 exception must be determined on a case-by-case basis. Open Records Decision No. 626 at 6 (1994). Additionally, when answers to test questions might reveal the substance of the questions themselves, the answers may be withheld from disclosure under section 552.122(b). See Open Records Decision No. 626 at 8 (1994). Having reviewed the submitted information, we agree that most of the interview questions are "test items" as contemplated by section 552.122(b). Therefore, you may withhold these questions and their preferred and actual answers under section 552.122(b). We conclude that the remainder of the submitted questions do not test an individual's or group's knowledge or ability in a particular area. Therefore, you must release the interview questions that we have marked, as well as their preferred and actual answers. You claim that portions of the remaining submitted information are excepted from disclosure under section 552.117 of the Governmental Code. Section 552.117(a)(3) excepts from public disclosure the present and former home addresses and telephone numbers, social security numbers, and family member information of current or former department officials or employees, regardless of whether the employee made an election under section 552.024 or 552.1175. We note, however, that an individual's personal post office box number is not a "home address" and therefore may not be withheld under section 552.117. See Gov't Code § 552.117; Open Records Decision No. 622 at 4 (1994) ("The legislative history of section 552.117(1)(A) makes clear that its purpose is to protect public employees from being harassed at home. See House Committee on State Affairs, Bill Analysis, H.B. 1976, 69th Leg. (1985); Senate Committee on State Affairs, Bill Analysis, H.B. 1976, 69th Leg. (1985)." (Emphasis added.)); see also Open Records Decision Nos. 658 at 4 (1998) (statutory confidentiality provision must be express and cannot be implied), 478 at 2 (1987) (language of confidentiality statute controls scope of protection), 465 at 4-5 (1987) (statute explicitly required confidentiality). We also note that section 552.117(a)(3) is applicable only to information pertaining to an employee or former employee of the department. Based on your arguments and our review of the submitted information, we have marked the types of information that the department must withhold pursuant to section 552.117(a)(3) of the Government Code, if they apply to a current or former employee of the department. However, because section 552.117 is based on privacy principles, the information concerning the requestor that would otherwise be protected by this exception must be released to her. See Gov't Code § 552.023(b) (governmental body may not deny access to person to whom information relates or person's agent on grounds that information is considered confidential by privacy principles). Even if section 552.117(a)(3) does not apply, the social security numbers in the submitted information may be confidential under federal law. Social security numbers or "related records" may be excepted from disclosure 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).(1) 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 any social security number in the file is confidential under section 405(c)(2)(C)(viii)(I), and therefore excepted from public disclosure under section 552.101 of the Government Code 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 department pursuant to any provision of law, enacted on or after October 1, 1990. However, because the laws regarding the confidentiality of social security numbers are intended to protect individuals' privacy, the requestor's social security number may not be withheld from her on the basis of the federal law. See Gov't Code § 552.023(b). You also claim that some of the submitted information is confidential under section 552.130 of the Government Code. In relevant part, section 552.130 provides: (a) Information is excepted from required public disclosure if the information relates to: (1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or] (2) a motor vehicle title or registration issued by an agency of this state[.] Gov't Code § 552.130. Therefore, you must withhold the Texas-issued motor vehicle record information we have marked under section 552.130. Next, you claim that some of the submitted information is confidential under section 552.137 of the Government Code. In relevant part, section 552.137 provides that, "an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body" unless the member of the public consents to its release or the e-mail address is of a type specifically excluded by subsection (c). See Gov't Code § 552.137(a)-(c). We note that section 552.137 does not apply to a government employee's work e-mail address because such an address is not that of the employee as a "member of the public" but is instead the address of the individual as a government employee. Since the e-mail addresses contained in the submitted information do not appear to be of the type specifically excluded by section 552.137(c), the department must withhold the e-mail addresses we marked under section 552.137 unless the department receives consent for their release. Finally, you claim that a portion of the submitted information constitutes a Department of Defense Form DD-214 (the "DD-214 form") that is excepted from disclosure pursuant to section 552.140 of the Government Code. Section 552.140 provides in relevant part: (a) This section applies only to a military veteran's Department of Defense Form DD-214 or other military discharge record that is first recorded with or that otherwise first comes into the possession of a governmental body on or after September 1, 2003. Gov't Code § 552.140(a). Section 552.140 provides that a military veteran's DD-214 form or other military discharge record that is first recorded with or that otherwise first comes into the possession of a governmental body on or after September 1, 2003 is confidential for a period of seventy-five years and may only be disclosed in accordance with section 552.140 or in accordance with a court order. See Gov't Code § 552.140(a), (b). You indicate that the department first came into possession of this form after September 1, 2003. Accordingly, we conclude that the department must withhold this marked form pursuant to section 552.140 of the Government Code. In summary, social security numbers contained within the submitted information may be confidential under federal law. We have marked the types of information that the department must withhold pursuant to section 552.117(a)(3) of the Government Code, if they pertain to a current or former employee of the department. Except for the information that we have marked for release, the department may withhold the test questions, as well as the recommended and actual responses associated with these questions, pursuant to section 552.122(b) of the Government Code. The department must withhold the Texas motor vehicle information that we have marked pursuant to section 552.130 of the Government Code. Unless the department has received affirmative consent for the release of the e-mail addresses that we have marked, the department must withhold the addresses pursuant to section 552.137(a) of the Government Code. The department must withhold the information that we have marked pursuant to section 552.140 of the Government Code. The department must release the remaining submitted information 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: Ms. Juanita Rash
Footnotes 1. Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision" and encompasses information that is made confidential by statute. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |