 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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April 4, 2007 Mr. Stephen R. Alcorn OR2007-03769 Dear Mr. Alcorn: 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# 275404. The City of Grand Prairie (the "city") received a request for all documentation used to prepare the requestor's termination as a city employee and certain records relating to other employees. You have submitted information that the city seeks to withhold under sections 552.102, 552.103, and 552.117 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted "representative copy" of information. (1) We assume that the city has released any other types of information that are responsive to this request, to the extent that such information existed when the city received the request. If not, then the city must release any such information immediately. See Gov't Code §§ 552.221, .301, .302; Open Records Decision No. 664 (2000). In this regard, we note that this request contains questions. In responding to a request for information under the Act, a governmental body need not answer factual questions, conduct legal research, or create new information. See Open Records Decision Nos. 563 at 8 (1990), 555 at 1-2 (1990). Likewise, a governmental body need not take affirmative steps to create or obtain information that is not in its possession, so long as no other individual or entity holds that information on behalf of the governmental body that received the request. See Gov't Code § 552.002(a); Open Records Decision Nos. 534 at 2-3 (1989), 518 at 3 (1989). However, a governmental body must make a good-faith effort to relate a request to responsive information that is within its possession or control. See Open Records Decision No. 561 at 8-9 (1990). We assume that the city has done so and has either released any such information or submitted it to this office in requesting this decision. Section 552.102 of the Government Code excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]" Gov't Code § 552.102(a). Section 552.102(a) protects information that relates to public officials and employees. The privacy analysis under section 552.102(a) is the same as the common-law privacy test under section 552.101 of the Government Code and Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976). See Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 549-51 (Tex. App. - Austin 1983, writ ref'd n.r.e.) (addressing statutory predecessor to Gov't Code § 552.102). Therefore, we will consider your privacy claim under section 552.101. 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 exception encompasses the common-law right to privacy, which protects information that 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., 540 S.W.2d at 685. Common-law privacy protects the specific types of information that are held to be intimate or embarrassing in Industrial Foundation. See id. at 683 (information relating to sexual assault, pregnancy, mental or physical abuse in workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs). This office has concluded that other types of information also are private under section 552.101. See generally Open Records Decision No. 659 at 4-5 (1999) (summarizing information attorney general has held to be private). We also have determined that common-law privacy encompasses certain types of personal financial information. Financial information that relates only to an individual ordinarily satisfies the first element of the common-law privacy test, but the public has a legitimate interest in the essential facts about a financial transaction between an individual and a governmental body. See, e.g., Open Records Decision Nos. 600 at 9-12 (1992) (identifying public and private portions of certain state personnel records), 545 at 4 (1990) (attorney general has found kinds of financial information not excepted from public disclosure by common-law privacy to generally be those regarding receipt of governmental funds or debts owed to governmental entities). In this instance, the submitted information is related to various types of leave taken by city employees, including the requestor, and other personnel matters. We note that the requestor has a special right of access to her own private information, and such information may not be withheld on privacy grounds under section 552.101. See Gov't Code § 552.023(a); Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual requests information concerning herself). (2) Moreover, this office has explained on many occasions that information relating to public employees and public employment is generally a matter of legitimate public interest. See, e.g., Open Records Decision Nos. 470 at 4 (1987) (job performance does not generally constitute public employee's private affairs), 405 at 2 (1983) (manner in which public employee's job was performed cannot be said to be of minimal public interest). Therefore, having considered your arguments and reviewed the submitted information, we conclude that the city may not withhold any of the information under section 552.101 in conjunction with common-law privacy. 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), 444 at 3 (1986) (public has obvious interest in information concerning qualifications and performance of governmental employees), 336 at 2 (1982) (names of employees taking sick leave and dates of sick leave taken not private under statutory predecessor to Gov't Code § 552.102(a)). You also claim the "litigation exception," section 552.103 of the Government Code, which provides in part: (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 state or a political subdivision, as a consequence 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). A governmental body that claims an exception to disclosure under section 552.103 has the burden of providing relevant facts and documentation sufficient to establish the applicability of this exception to the information that it seeks to withhold. To meet this burden, the governmental body must demonstrate that (1) litigation was pending or reasonably anticipated on the date of its receipt of the request for information and (2) the information at issue is related to the pending or anticipated litigation. See Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479 (Tex. App. - Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App. - Houston [1st Dist.] 1984, writ ref'd n.r.e.). Both elements of the test must be met in order for information to be excepted from disclosure under section 552.103. See Open Records Decision No. 551 at 4 (1990). To establish that litigation is reasonably anticipated, a governmental body must provide this office with "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. Id. You state that the requestor filed a grievance after she was terminated. You have not explained, however, how the grievance process is considered to be litigation for the purposes of section 552.103. See Open Records Decision No. 588 (1991) (discussing factors used by attorney general in determining whether administrative proceeding not subject to Administrative Procedure Act may be considered to be litigation); see also Gov't Code § 552.301(e)(1) (requiring governmental body to explain applicability of raised exception). Thus, we find that you have failed to establish that the city reasonably anticipated litigation when it received this request for information. We therefore conclude that the city may not withhold any of the submitted information under section 552.103. Lastly, we address your claim under section 552.117 of the Government Code. Section 552.117(a)(1) excepts from disclosure the home address and telephone number, social security number, and family member information of a current or former official or employee of a governmental body who timely requests that this information be kept confidential. See Gov't Code § 552.024; Open Records Decision No. 530 at 5 (1989). Because none of the submitted information falls within the scope of this exception, the city may not withhold any of the submitted information under section 552.117(a)(1). In summary, the city may not withhold any of the submitted information under section 552.101, section 552.103, or section 552.117 of the Government Code. All of the 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, James W. Morris, III Assistant Attorney General Open Records Division JWM/jb Ref: ID# 275404 Enc: Submitted documents c: Ms. Mary Beth Ek 915 Desco Lane, Apt. 1194 Grand Prairie, Texas 75051 (w/o enclosures)
1. This letter ruling assumes that the submitted information is truly representative of the requested
information as a whole. This ruling neither reaches nor authorizes the city to withhold any information that is
substantially different from the submitted information. See Gov't Code §§ 552.301(e)(1)(D), .302; Open
Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).
Section 552.023(a) provides that "[a] person or a person's authorized representative has a special right
of access, beyond the right of the general public, to information held by a governmental body that relates to the
person and that is protected from public disclosure by laws intended to protect that person's privacy interests."
Gov't Code § 552.023(a). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |