 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
February 22, 2007 Mr. John C. West OR2007-02120 Dear Mr. West: 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# 271900. The Texas Department of Criminal Justice (the "department") received a request for a specified investigation. You state that the department has released to the requestor her statements and basic information regarding the investigation at issue with redactions pursuant to the previous determination issued by this office in Open Records Letter No. 2005-01067 (2005). (1) See Gov't Code § 552.301(a); Open Records Decision No. 673 at 7-8 (2001) (delineating elements of second type of previous determination under section 552.301(a)). The department also states that it is withholding social security numbers pursuant to section 552.147 of the Government Code. (2) The department claims that the remaining submitted information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Your arguments under section 552.108 of the Government Code are the most expansive; therefore, we will address that exception first. Section 552.108 provides in relevant part: (a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if: (1) release of the information would interfere with the detection, investigation or prosecution of crime[.] Gov't Code § 552.108(a)(1). A governmental body that raises section 552.108 must reasonably explain how and why section 552.108 is applicable to the information at issue. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). We note that this exception is generally not applicable to the records of an internal affairs investigation that is purely administrative in nature and that does not involve the investigation or prosecution of crime. See City of Fort Worth v. Cornyn, 86 S.W.3d 320 (Tex. App.--Austin 2002, no pet.), Morales v. Ellen, 840 S.W.2d 519, 525-26 (Tex. Civ. App.--El Paso 1992, writ denied) (statutory predecessor to section 552.108 not applicable to internal investigation that did not result in criminal investigation or prosecution). In this instance, you explain that the submitted information pertains to an ongoing administrative investigation. Since this investigation is not criminal in nature, we are unable to conclude that section 552.108(a)(1) of the Government Code is applicable, and none of the submitted information may be withheld on that basis. 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." Gov't Code § 552.101. You raise section 552.101 in conjunction with the common-law right to privacy. Information must be withheld from the public under section 552.101 in conjunction with common-law privacy when the information is highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and of no legitimate public interest. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court applied the common-law right to privacy to an investigation of alleged sexual harassment. The investigation files at issue in Ellen contained third-party witness statements, an affidavit in which the individual accused of the misconduct responded to the allegations, and the conclusions of the board of inquiry that conducted the investigation. See 840 S.W.2d at 525. The court upheld the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the disclosure of such documents sufficiently served the public's interest in the matter. Id. The court also held that "the public does not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id. You argue that the public availability of the submitted information is governed by Ellen. Having considered your arguments and reviewed the information at issue, we conclude that the information at issue does not involve an investigation of alleged sexual harassment for purposes of Ellen. Therefore, the department may not withhold any of the submitted information on that basis under section 552.101 of the Government Code. We further note that the information at issue pertains to employees of the department and their behavior in the workplace. As this office has often stated, the public generally has a legitimate interest in such information. See also Open Records Decision Nos. 562 at 10 (1990) (personnel file information does not involve most intimate aspects of human affairs, but in fact touches on matters of legitimate public concern), 470 at 4 (1987) (job performance does not generally constitute public employee's private affairs), 444 at 3 (1986) (public has obvious interest in information concerning qualifications and performance of public employees), 405 at 2 (1983) (manner in which public employee performed his or her job cannot be said to be of minimal public interest). However, this office has found that some medical information or information indicating disabilities or specific illnesses is protected under common-law privacy. Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). The department must withhold the medical information we have marked pursuant to section 552.101 of the Government Code in conjunction with common-law privacy. The remaining information is not protected by common-law privacy and may not be withheld on that basis. We note the submitted information includes polygraph information. Section 1703.306 of the Occupations Code governs information obtained in the course of conducting a polygraph examination and provides that "a person for whom a polygraph examination is conducted . . . may not disclose information acquired from a polygraph examination" except to certain categories of people. Occ. Code § 1703.306(a). The requestor does not appear to fall within any of the enumerated categories; therefore, the department must withhold the polygraph information we have marked in the submitted records under section 552.101 of the Government Code in conjunction with section 1703.306 of the Occupations Code. The submitted information also includes e-mail addresses. Section 552.137 of the Government Code excepts from disclosure "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). (3) See Gov't Code § 552.137(a)-(c). 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. The e-mail addresses we have marked in the submitted information are not of a type specifically excluded by section 552.137(c). Therefore, unless the department receives consent for their release, the department must withhold the marked e-mail addresses in accordance with section 552.137. The remaining submitted information includes notice of copyright protection. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Attorney General Opinion JM-672 (1987). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id. If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 (1990). In summary, the department must withhold the information we have marked under section 552.101 of the Government Code in conjunction with (1) common-law privacy, and (2) section 1703.306 of the Occupations Code. Unless the department receives consent for its release, it must withhold the information we have marked under section 552.137 of the Government Code. The remaining submitted information must be released; however, in releasing information that is protected by copyright, the department must comply with copyright law. 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, Ramsey A. Abarca Assistant Attorney General Open Records Division RAA/eb Ref: ID# 271900 Enc. Submitted documents c: Ms. Amy Ogden 2465 South State Highway 94 Trinity, Texas 75862 (w/o enclosures)
1. Open Records Letter No. 2005-01067 (2005) serves as a previous determination for the department
that the present and former home addresses and telephone numbers, social security numbers, and family member
information of current or former employees of the department, regardless of whether the current or former
employee complies with section 552.1175 of the Government Code, are excepted from disclosure under
section 552.117(a)(3) of the Government Code.
We note that section 552.147(b) of the Government Code authorizes a governmental body to redact
a living person's social security number from public release without the necessity of requesting a decision from
this office under the Act.
The Office of the Attorney General will raise a mandatory exception on behalf of a governmental
body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987),
470 (1987). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |