 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 20, 2007 Ms. Helen Valkavich OR2007-03096 Dear Ms. Valkavich: 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#273966. The City of San Antonio (the "city") received a request for information relating to the city's investigation of a named person, the named person's resignation, and any information relating to the employee who was involved with the named person. You state that some of the requested information has been released to the requestor. You claim that the remainder of the requested information is excepted from disclosure under sections 552.101, 552.102, 552.117, 552.130, and 552.147 of the Government Code. 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." Gov't Code § 552.101. This section encompasses the doctrine of common law privacy. Section 552.102 of the Government Code excepts from public disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]" Id. § 552.102(a). Section 552.102 is applicable to information that relates to public officials and employees. See Open Records Decision No. 327 at 2 (1982) (anything relating to an employee's employment and its terms constitutes information relevant to a person's employment relationship and is part of the employee's personnel file). In Hubert v. Harte-Hanks Tex. Newspapers, 652 S.W.2d 546 (Tex. App. - Austin 1983, writ ref'd n.r.e.), the court ruled that the test to be applied to information claimed to be protected under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 688, 683-685 (Tex. 1976). Accordingly, we will consider your section 552.102 claim in the context of the doctrine of common law privacy under section 552.101 of the Government Code. For information to be protected by common law privacy it must meet the criteria set out in Industrial Foundation. The Industrial Foundation court stated that information is excepted from disclosure if: (1) the information contains highly intimate or embarrassing facts, the release of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. 540 S.W.2d at 685. 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. Prior decisions of this office have determined that some kinds of medical information are protected by common law privacy. See Open Records Decision No. 455 (1987) (information pertaining to prescription drugs, specific illnesses, procedures, and physical disabilities protected by privacy). We note, however, that the work conduct and job performance of public employees is subject to a legitimate public interest and generally not protected under common law privacy. See Open Records Decision Nos. 470 (1987) (public employee's job performance does not generally constitute his private affairs), 455 (1987) (public employee's job performances or abilities generally not protected by privacy), 444 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employees), 423 at 2 (1984) (statutory predecessor applicable when information would reveal intimate details of highly personal nature), 405 at 2 (1983) (manner in which employee performed his job cannot be said to be of minimal public interest), 400 at 5 (1983) (statutory predecessor protected information only if its release would lead to clearly unwarranted invasion of privacy). We have marked the information that must be withheld under section 552.101 in conjunction with common law privacy. You also claim that Morales v. Ellen is applicable to the remaining submitted information. Morales v. Ellen, 840 S.W.2d 519 (Tex. App. - El Paso 1992, writ denied). In Morales v. Ellen, the court addressed the applicability of the common law privacy doctrine to files of an investigation of allegations of sexual harassment. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the public's interest was sufficiently served by the disclosure of such documents. Id. In concluding, the Ellen court held that "the public did 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. Thus, if there is an adequate summary of an investigation of alleged sexual harassment, the investigation summary must be released along with the statement of the accused under Ellen, but the identities of the victims and witnesses of the alleged sexual harassment must be redacted, and their detailed statements must be withheld from disclosure. See Open Records Decision Nos. 393 (1983), 339 (1982). If no adequate summary of the investigation exists, then all of the information relating to the investigation ordinarily must be released, with the exception of information that would identify the victims and witnesses. In either case, the identity of the individual accused of sexual harassment is not protected from public disclosure. We note that because supervisors are not witnesses for the purposes of Ellen, supervisors' identities may not generally be withheld under section 552.101 in conjunction with common law privacy and the holding in Ellen. Although the information at issue involves allegations of misconduct by city employees, the city has not demonstrated that this information pertains to a sexual harassment investigation for purposes of Ellen. Therefore, the city may not withhold any of the remaining submitted information on the basis of Ellen. Section 552.117(a)(1) excepts from public disclosure the home address, telephone number, social security number, and family member information of a current or former employee of a governmental body who requests that this information be kept confidential under section 552.024 of the Government Code. Whether a particular item of information is protected by section 552.117(a)(1) excepts from public disclosure the home address, telephone number, social security number, and family member information of a current or former employee of a governmental body who requests that this information be kept confidential under section 552.024 of the Government Code. Whether a particular item of information is protected by section 552.117(a)(1) must be determined at the time of the governmental body's receipt of the request for the information. See Open Records Decision No. 530 at 5 (1989). Therefore, the city may only withhold information under section 552.117 on behalf of current or former officials or employees who elected to keep information confidential pursuant to section 552.024 prior to the date on which the request for this information was received by the city. The submitted documents include election forms for two of the employees at issue that were completed prior to the date the city received the present request. Therefore, the city must withhold the information pertaining to these two individuals, which we have marked under section 552.117(a)(1). The submitted information does not indicate that the remaining information we have marked under section 552.117(a)(1) pertains to employees who have elected to withhold personal information pursuant to section 552.024. If these employees did make such an election prior to the city's receipt of the present request, then the city must withhold the remaining information we have marked under section 552.117(a)(1). The city may not withhold this information for those employees who did not make a timely election to keep the information confidential. Section 552.130 of the Government Code excepts from disclosure information that "relates to . . . a motor vehicle operator's or driver's license or permit issued by an agency of this state [or] a motor vehicle title or registration issued by an agency of this state." Gov't Code § 552.130. Therefore, section 552.130 is applicable to the marked Texas driver's license information contained in the submitted documents. Section 552.147 of the Government Code provides that "[t]he social security number of a living person is excepted from" required public disclosure under the Act. Therefore, the city must withhold the marked social security number in the submitted information under section 552.147. (1) In summary, the city must withhold the information that we have marked in the submitted documents pursuant to sections 552.101 and 552.102 in conjunction with common law privacy. If applicable, the city must withhold the information that we have marked in the submitted documents pursuant to section 552.117. The city must withhold the marked Texas driver's license information under section 552.130. The city must withhold the marked social security number under section 552.147. The city must release the remainder of the submitted information. 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, Lori A. Cobos Assistant Attorney General Open Records Division LC/eb Ref: ID#273966 Enc. Submitted documents c: Mr. Pete Romero 5147 Timber Gale San Antonio, Texas 78250 (w/o enclosures)
1. 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. Gov't Code § 552.147(b). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |