 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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November 28, 2006 Ms. Ellen Huchital Spalding OR2006-13922 Dear Ms. Spalding: 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# 265522. The Eanes Independent School District (the "district"), which you represent, received a request for all information contained in the district superintendent's personnel file. The requestor has specifically excluded social security numbers and bank account numbers from her request. Accordingly, any of this information within the requested documents is not responsive to the present request. This ruling does not address the public availability of any information that is not responsive to the present request, and the district need not release that information in response to this request. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd). You state that the district has provided a portion of the requested information. However, you contend that the remaining requested information is excepted from disclosure under sections 552.101, 552.102, 552.103, and 552.117 of the Government Code. (1) We have considered the exceptions you claim and reviewed the submitted information. We have also considered comments submitted by the requestor. See Gov't Code § 552.304 (permitting submission of comments as to why information should or should not be released). Initially, you note that some of the information responsive to this request is the identical information that was the subject of a previous ruling from this office. In Open Records Letter No. 2006-04849 (2006), the district received a request for the evaluations of the superintendent. In that ruling we concluded that the district must withhold the information resubmitted here in Exhibits 11 through 26 under section 552.101 of the Government Code in conjunction with section 21.355. You state that the four criteria for a "previous determination" established by this office in Open Records Decision No. 673 (2001) have been met. (2) Therefore, we conclude that the district must continue to rely on our decision in Open Records Letter No. 2006-04849 with respect to Exhibits 11 through 26. See Gov't Code § 552.301(f); Open Records Decision No. 673 (2001). We now turn to your arguments for the information you have submitted that is not encompassed by the prior ruling. Section 552.103 of the Government Code provides in relevant part as follows: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the person's office or employment, is or may be a party. . . . (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. Gov't Code § 552.103(a), (c). The district has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The district must meet both prongs of this test for information to be excepted under section 552.103(a). To establish that litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. See id. Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party. See Open Records Decision No. 555 (1990); see also Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). On the other hand, this office has determined that, if an individual publicly threatens to bring suit against a governmental body but does not actually take objective steps toward filing suit, litigation is not reasonably anticipated. See Open Records Decision No. 331 (1982). Further, the fact that a potential opposing party has hired an attorney who makes a request for information does not establish that litigation is reasonably anticipated. See Open Records Decision No. 361 (1983). You state that, prior to the district's receipt of the request for information, the requestor filed complaints against the district with at least four different state and federal agencies, as well as several internal grievances. Based on your assertion, we conclude that litigation was reasonably anticipated by the district on the date it received the request for information. However, after review of your arguments and the information at issue, we conclude you have not established that the information at issue is related to the anticipated litigation. Therefore, the district may not withhold any of the submitted information under section 552.103. You also raise section 552.101 of the Government Code for a portion of the submitted information. Section 552.101 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. Exhibits 8 and 9 constitute an I-9 Employment Eligibility Verification Form and the appropriate attachment. Form I-9 is governed by section 1324a of title 8 of the United States Code, which provides that an I-9 form and "any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter" and for enforcement of other federal statutes governing crime and criminal investigations. See 8 U.S.C. § 1324a(b)(5); see also 8 C.F.R. § 274a.2(b)(4). Release of the I-9 form and the attachment in this instance would be "for purposes other than for enforcement" of the referenced federal statutes. Accordingly, we conclude that the I-9 form and attachment are confidential and may only be released in compliance with the federal laws and regulations governing the employment verification system. Exhibit 10 constitutes a medical record, access to which is governed by the Medical Practice Act ("MPA"), chapter 159 of the Occupations Code. Section 159.002 provides in pertinent part: (b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter. (c) A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. Occ. Code § 159.002( b), (c). The MPA requires that any subsequent release of medical records be consistent with the purposes for which a governmental body obtained the records. Open Records Decision No. 565 at 7 (1990). Moreover, information that is subject to the MPA includes both medical records and information obtained from those medical records. See Occ. Code § 159.002(a), (b), (c); Open Records Decision No. 598 (1991). Based on our review of the submitted information, Exhibit 10 is subject to the MPA and may only be released in accordance therewith. Section 552.101 also 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. Accordingly, the district must withhold the information we have marked in Exhibit 7 under section 552.101 in conjunction with common-law privacy. (3) The district asserts that the submitted transcripts are subject to section 552.102(b) of the Government Code. Section 552.102(b) excepts from disclosure most information on a transcript from an institution of higher education maintained in the personnel files of professional public school employees. Gov't Code § 552.102(b). Section 552.102(b) excepts from disclosure all information from transcripts other than the employee's name, the courses taken, and the degree obtained. Open Records Decision No. 526 (1989). Thus, with the exception of the employee's name, the courses taken, and the degree obtained, the district must withhold the information in the submitted transcripts pursuant to section 552.102(b). Finally, we address your argument under section 552.117 of the Government Code. Section 552.117(a)(1) excepts from disclosure the current and former home addresses and telephone 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. Gov't Code § 552.117(a)(1). However, an individual's personal post office box number is not a "home address" for purposes of section 552.117, and therefore may not be withheld under section 552.117. See Open Records Decision No. 622 at 4 (1994) (purpose of section 552.117 is to protect public employees from being harassed at home). Whether information is protected by section 552.117(a)(1) must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). We understand the superintendent to have timely elected to keep her home address, phone number, and family member information confidential. Accordingly, you must withhold the information we have marked pursuant to section 552.117(a)(1) of the Government Code. In summary, the district must continue to rely on our decision in Open Records Letter No. 2006-04849 with respect to Exhibits 11 through 26. The district must withhold the following information under section 552.101: (1) the I-9 form and attachment in Exhibits 8 and 9 in conjunction with federal laws and regulations, (2) the medical record in Exhibit 10 in conjunction with the MPA, and (3) the information marked in Exhibit 7 in conjunction with common-law privacy. With the exception of the employee's name, the courses taken, and the degree obtained, the district must withhold the information in the submitted transcripts pursuant to section 552.102(b). Finally, the district must withhold the information marked pursuant to section 552.117 of the Government Code. The remaining submitted 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); 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, Lauren Kleine Assistant Attorney General Open Records Division LEK/eb Ref: ID# 265522 Enc. Submitted documents c: Ms. Dianna Pharr 2204 Westlake Drive Austin, Texas 78746 (w/o enclosures)
1. Although you also raise section 552.137 of the Government Code, you have provided no arguments
explaining how this exception is applicable to the submitted information. Therefore, we presume you no longer
assert this exception to disclosure. Gov't Code § 552.301, .302.
The four criteria for this type of "previous determination" are 1) the records or information at issue
are precisely the same records or information that were previously submitted to this office pursuant to
section 552.301(e)(1)(D) of the Government Code; 2) the governmental body which received the request for
the records or information is the same governmental body that previously requested and received a ruling from
the attorney general; 3) the attorney general's prior ruling concluded that the precise records or information are
or are not excepted from disclosure under the Act; and 4) the law, facts, and circumstances on which the prior
attorney general ruling was based have not changed since the issuance of the ruling. See Open Records
Decision No. 673.
As our ruling is dispositive, we need not address your remaining arguments against the disclosure of
this information. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |