November 28, 2006

Ms. Chelsea Thornton
Assistant General Counsel
Office of the Governor
P. O. Box 12428
Austin, Texas 78711

OR2006-13914

Dear Ms. Thornton:

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# 264397.

The Office of the Governor (the "governor") received a request for information submitted by a named applicant for the gubernatorial appointment to the position of judge in the 414^th District Court. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

You state that the governor is withholding questions two, three and six, and the answers to these questions pursuant to the previous determination of this office in Open Records Letter No. 1997-1048 (1997). In that decision, we determined that the governor may withhold all answers to question number three without the necessity of requesting an attorney general decision as to the applicability of the exception of section 552.101 of the Government Code and the doctrine of common law privacy. ⁽¹⁾ See Gov't Code § 552.101; Open Records Letter No. 1997-1048 (1997); see also Open Records Decision No. 673 at 7-8 (2001) (listing elements of second type of previous determination under section 552.301(a)). However, Open Records Letter No. 1997-1048 is not a previous determination to withhold questions two, three, and six and the answers to questions two and six without seeking a ruling from this office. Therefore, we will address your remaining argument for this information, as well as the remaining submitted information.

You claim that the information at issue is excepted from disclosure under section 552.101 of the Government Code in conjunction with the doctrine of common law privacy. Section 552.101 excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. 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. Id. at 683. This office also has found that some kinds of medical information or information indicating disabilities or specific illness are excepted from required public disclosure under common law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). But this office has found that the public has a legitimate interest in information relating to employees of governmental bodies and their employment qualifications and job performance. See Open Records Decision Nos. 562 at 10 (1990), 542 at 5 (1990); see also Open Records Decision No. 423 at 2 (1984) (scope of public employee privacy is narrow). We have marked the information that must be withheld under section 552.101 of the Government Code in conjunction with common law privacy. However, the remaining information at issue is not highly intimate or embarrassing or there is a legitimate public interest in the information. Therefore, this information is not confidential under common law privacy, and the governor may not withhold it under section 552.101 on that ground. As you raise no other exceptions to disclosure, the remaining submitted information 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, 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,

Tamara L. Harswick

Assistant Attorney General

Open Records Division

TLH/krl

Ref: ID# 264397

Enc. Submitted documents

c: Ms. Linda Gassaway

495 Beverly Cox Drive

Waco, Texas 76705

(w/o enclosures)

Footnotes

1. In Open Records Letter No. 1997-1048, question number three read "Have you ever been treated for or suffered from any form of mental illness? If so, give details."

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