 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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September 21, 2005 Ms. Jennifer McClure
OR2005-08624 Dear Ms. McClure: 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# 232825. The Dallas County Health and Human Services Department (the "department") received a request for information related to a department housing program, including a list of those individuals receiving housing vouchers. You indicate that most of the requested information will be released to the requestor, but claim that the list of voucher recipients can only be released by the Department of Housing and Urban Development ("HUD"). In the alternative, we understand you to claim that the submitted list is excepted from disclosure under section 552.101 of the Government Code. We have considered your arguments and reviewed the submitted information.(1) Initially, we must address your claim that the department should not have to respond to the request for information because the requestor should have sought the list of voucher recipients from HUD, not the department. We note that under the Act, a governmental body must respond to a request for information if that governmental body owns or has a right of access to the information. See Open Records Decision No. 462 (1987). In this instance, you acknowledge that the department has a right of access to the list of voucher recipients. Accordingly, the request for information was properly submitted to the department, and we will address your arguments for withholding the submitted list of voucher recipients under the Act. You claim that the submitted information is excepted under section 552.101 of the Government Code. This section excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information protected by other statutes. You claim that the submitted list of voucher recipients is excepted from disclosure under section 1000.556 of title 24 of the Code of Federal Regulations, which provides: [The Freedom of Information Act ("FOIA")] does not apply to recipient records. However, there may be applicable State and tribal access laws or recipient policies which may apply. 24 C.F.R. § 1000.556 (2005). We note, however, that this provision is only applicable to vouchers granted under the Native American Housing Assistance and Self-Determination Act of 1996. 25 U.S.C. § 4101 (1996). You do not indicate, and we are unable to determine, whether the vouchers in question were granted under this federal provision. Nevertheless, this office has held that FOIA applies only to federal agencies and does not apply to records held by state agencies. See Open Records Decision No. 561 at 6 (1990). Additionally, section 1000.556 specifically states that state access laws are applicable to vouchers granted under this federal provision. The Act is a state access law because it "is a mandate in Texas law that compels Texas governmental bodies to disclose information to the public." Open Records Decision No. 681 at 8 (2004). Therefore, we find that section 1000.556 of title 24 of the Code of Federal Regulations is inapplicable in this instance, and the submitted list of voucher recipients may not be withheld on that basis. You also claim that the submitted list of voucher recipients should be withheld under section 552.101 in conjunction with common law privacy. The doctrine of common law privacy protects information if it (1) contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). The types 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. Id. at 683. In addition, this office has found that the following types of information are excepted from required public disclosure under common law privacy: personal financial information not relating to a financial transaction between an individual and a governmental body, see Open Records Decision Nos. 600 (1992), 545 (1990); some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps); and identities of victims of sexual abuse, see Open Records Decision Nos. 440 (1986), 393 (1983), 339 (1982). You claim that the submitted list of voucher recipients should be withheld under common law privacy because the list could include the names of domestic violence and sexual assault victims. We note, however, that information concerning domestic violence generally does not come within the scope of common law privacy. Open Records Decision No. 611 (1992) ("An assault by one family member on another is a crime, not a family matter normally considered private"). Furthermore, you do not inform us that any of the listed individuals is a sexual assault victim. Therefore, you may not withhold any of the submitted information under common law privacy because it might possibly identify a domestic violence or sexual assault victim. We note, however, that some of the submitted information lists individuals as being disabled or having no income. Information which reveals that someone has no income amounts to personal financial information. As we previously noted, personal financial information, as well as information that reveals a disability, is considered highly intimate or embarrassing. We have marked the information that reveals whether an individual has a disability or no income. Upon review, we conclude that there is no legitimate public interest in this information. Cf. Open Records Decision Nos. 455 (1987) (holding that there is no legitimate public interest in information regarding an applicant for government employment's physical handicaps), 373 (1983 ) (holding that financial information relating to an individual applicant for a housing rehabilitation grant is not of legitimate public concern). Therefore, the department must withhold the information we have marked under section 552.101 in conjunction with common law privacy. The remainder of the submitted information is not excepted from disclosure and must be released to the requestor. See Open Records Decision No. 318 (1982) (holding that the names and present addresses of former residents of a public housing development were not protected from disclosure under the common law right to privacy). 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); 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 Office of the Attorney General 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. 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 A. Person III
c: Mr. Harold B. Cornish
Footnotes 1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |