 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 17, 2005 Ms. Christi C. Worth
OR2005-02293 Dear Ms. Worth: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 220061. The Teacher Retirement System of Texas (the "system") received three requests for information relating to conversations between system staff and current or former members of the Louisiana State Employees Retirement System or the National Association of State Retirement Administrators regarding a named individual. You indicate that you are releasing some of the requested information but claim that portions of the remaining submitted information are excepted from disclosure under sections 552.101 and 552.117 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted information. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses the doctrine of common law privacy. 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. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). 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. After reviewing the submitted memorandum, we conclude that it does not contain information that is considered highly intimate or embarrassing. Accordingly, the system may not withhold the submitted memorandum under section 552.101 of the Government Code and common law privacy. The system also asserts that portions of the submitted information may be excepted under section 552.101 in conjunction with constitutional privacy. 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; Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985). We find that the submitted memorandum does not contain information that is confidential under constitutional privacy; therefore, the system may not withhold the information at issue on that basis. The system asserts that some of the submitted information is excepted under section 552.117 of the Government Code.(2) Section 552.117(a)(1) excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024. We note that section 552.117 also encompasses a personal cell telephone number, provided that the cell phone service is not paid for by a governmental body. See Open Records Decision No. 506 at 5-6 (1988) (section 552.117 not applicable to cellular mobile phone numbers paid for by governmental body and intended for official use). Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). The system has provided evidence showing that the employees at issue made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. Thus, the system must withhold the marked telephone numbers contained in the responsive information. In summary, the system must withhold the highlighted personal telephone numbers under section 552.117(a)(1) of the Government Code. The remaining 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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); Tex. 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, Amanda Crawford
c: Mr. James O. Wood
Ms. Kathy Singleton
Mr. Kevin P. Torres
Footnotes 1. The system indicates that some of the submitted information is not responsive to the instant requests. This ruling only addresses information responsive to the requests at hand. See generally Gov't Code §§ 552.002, .021, .227, .351. 2. We note that, with regard to the first request for information received by the system, you acknowledge the system's failure to raise section 552.117 within the ten business day period mandated by section 552.301(b) of the Government Code. See Gov't Code §§ 552.301, .302. However, as this section is a mandatory exception to public disclosure that a governmental body may not waive, we will address you claim under section 552.117. See id. §§ 552.007, .352. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |