 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 19, 2008 Mr. William Christian Graves, Dougherty, Hearon & Moody P.O. Box 98 Austin, Texas 78767 OR2008-02231 Dear Mr. Christian: 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# 305234. Del Mar College (the "college"), which you represent, received six requests for specified categories of information, including applications from, contracts with, and billing records of a private law firm representing the college. You state that some of the requested information has been released, but claim that the submitted information is excepted from disclosure under sections 552.101, 552.102, and 552.103 of the Government Code and protected under Texas Rule of Evidence 503. (1) We have considered the exceptions you claim and reviewed the submitted information. Recently, the United States Department of Education Family Policy Compliance Office informed this office that the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232(a), does not permit state and local educational authorities to disclose to this office, without parental consent, unredacted, personally identifiable information contained in education records for the purpose of our review in the open records ruling process under the Act. (2) Consequently, state and local educational authorities that receive a request for education records from a member of the public under the Act must not submit education records to this office in unredacted form, that is, in a form in which "personally identifiable information" is disclosed. See 34 C.F.R. § 99.3 (defining "personally identifiable information"). You have submitted, among other things, unredacted education records for our review. Because our office is prohibited from reviewing these education records to determine whether appropriate redactions under FERPA have been made, we will not address the applicability of FERPA to any of the submitted records. Such determinations under FERPA must be made by the educational authority in possession of the education records. (3) We will, however, address the applicability of the remaining claimed exceptions to the submitted information. We next note that Exhibit 2 contains completed evaluations that are subject to section 552.022 of the Government Code. Under section 552.022(a)(1), a completed report, audit, evaluation, or investigation made of, for, or by a governmental body is expressly public unless it either is excepted under section 552.108 of the Government Code or is expressly confidential under other law. Although you assert that Exhibit 2 is excepted under section 552.103 of the Government Code, this section is a discretionary exception under the Act, and does not constitute "other law" for purposes of section 552.022. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.--Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision No. 542 at 4 (1990) (statutory predecessor to section 552.103 may be waived). Accordingly, the college may not withhold Exhibit 2 under section 552.103. You acknowledge, and we agree, that Exhibit 6 consists of information subject to section 552.022 of the Government Code. Under section 552.022(a)(3), information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body is expressly public unless it is expressly confidential under other law. Under section 552.022(a)(16), information that is in a bill for attorney's fees and that is not privileged under the attorney-client privilege is expressly public unless it is expressly confidential under other law. The Texas Supreme Court has held that the Texas Rules of Evidence are 'other law' within the meaning of section 552.022. See In re City of Georgetown, 53 S.W.3d 328 (Tex. 2001); see also Open Records Decision Nos. 677 (2002), 676 (2002). Accordingly, we will address your argument that some of the information in Exhibit 6 is excepted under Texas Rule of Evidence 503. Rule 503(b)(1) provides the following: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: (A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer; (B) between the lawyer and the lawyer's representative; (C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; (D) between representatives of the client or between the client and a representative of the client; or (E) among lawyers and their representatives representing the same client. Tex. R. Evid. 503(b)(1). A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Id. 503(a)(5). Accordingly, in order to withhold attorney-client privileged information from disclosure under rule 503, a governmental body must do the following: (1) show that the document is a communication transmitted between privileged parties or reveals a confidential communication; (2) identify the parties involved in the communication; and (3) show that the communication is confidential by explaining that it was not intended to be disclosed to third persons and that it was made in furtherance of the rendition of professional legal services to the client. See Open Records Decision No. 676 (2002). Upon a demonstration of all three factors, the entire communication is confidential under rule 503 provided the client has not waived the privilege or the communication does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein); In re Valero Energy Corp., 973 S.W.2d 453, 457 (Tex. App.-Houston [14th Dist.] 1998, no pet.) (privilege attaches to complete communication, including factual information). You assert that Exhibit 6 contains privileged communications between attorneys and clients; however, you have not identified any of the parties to the communications at issue. See Open Records Decision Nos. 542 (1990) (stating that governmental body has burden of establishing that exception applies to requested information). From our review of the submitted information, we have been able to identify some of these unidentified individuals as college employees or attorneys. Based on your representations and our review of the information at issue, we have marked the information that the college may withhold on the basis of the attorney-client privilege under Texas Rule of Evidence 503. But because you did not identify the other individuals involved in the communications, the college has failed to demonstrate that these communications are between privileged parties. Therefore, the college has not established that the remaining information is privileged under rule 503, and the college may not withhold the remaining information on that ground. You assert that Exhibits 1, 3, 4, and 5 are excepted under section 552.103 of the Government Code, which provides in 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 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. The governmental body 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 on the date the governmental body received the request for information 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 governmental body must meet both prongs of this test for information to be excepted under section 552.103(a). You inform us that, prior to the college's receipt of the request for information, the requestor and a college dean separately filed lawsuits against the college. We therefore agree that litigation was pending on the date the college received the request. Furthermore, having reviewed your arguments and representations, we find that the information at issue is related to the pending proceedings for purposes of section 552.103. Thus, section 552.103 is generally applicable to Exhibits 1, 3, 4, and 5. We note, however, that the college seeks to withhold information that the college dean, as plaintiff in a lawsuit against the college, has already seen or had access. The purpose of section 552.103 is to enable a governmental body to protect its position in litigation by forcing parties to obtain information that relates to the litigation through discovery procedures. See Open Records Decision No. 551 at 4-5 (1990). Thus, if the opposing party to pending litigation has already seen or had access to information that relates to the litigation, through discovery or otherwise, there is no interest in now withholding such information under section 552.103. See Open Records Decision Nos. 349 (1982), 320 (1982). Therefore, the submitted information that the college dean has already seen or had access to is not excepted under section 552.103. Accordingly, the college may withhold Exhibit 1, Exhibit 4, and the information we have marked in Exhibit 3 under section 552.103. (4) You assert that some of the remaining information is excepted under section 552.101 of the Government Code, which excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 also encompasses the doctrine of common-law privacy, which protects information that (1) contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person and (2) is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). 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. In addition, in Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court determined that a governmental body must withhold information that would tend to identify a witness or victim of sexual harassment. See Ellen, 840 S.W.2d at 525 ("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"). 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 is confidential under common-law privacy and that the college must withhold under section 552.101. But the remaining information is of legitimate public interest; therefore, the remaining information is not confidential under common-law privacy, and the college may not withhold it under section 552.101 on that ground. We note that section 552.117 of the Government Code may be applicable to some of the remaining information. Section 552.117(a)(1) excepts from disclosure the current and former home addresses and telephone numbers, social security 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 of the Government Code. 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). Pursuant to section 552.117(a)(1), the college must withhold this personal information that pertains to a current or former employee of the college who elected, prior to the college's receipt of the request for information, to keep such information confidential. Such information may not be withheld for individuals who did not make a timely election. We have marked information that must be withheld if section 552.117 applies. (5) The remaining information also includes account numbers. Section 552.136(b) of the Government Code provides that "[n]otwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." The college must withhold the account numbers we have marked under section 552.136. Finally, we note that some of the remaining information is excepted under section 552.137 of the Government Code. Section 552.137 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). 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 at issue do not appear to be of a type specifically excluded by section 552.137(c). You do not inform us that a member of the public has affirmatively consented to the release of any e-mail address contained in the submitted materials. Therefore, the college must withhold the e-mail addresses we have marked under section 552.137. To conclude, the college may withhold Exhibit 1, Exhibit 4, and the information we have marked in Exhibit 3 under section 552.103 of the Government Code. The college may also withhold the information we have marked under Texas Rule of Evidence 503. The college must withhold the following: (1) the information marked under section 552.117 of the Government Code if the employees timely elected to withhold that information; (2) the account numbers marked under section 552.136 of the Government Code; and (3) the e-mail addresses marked under section 552.137 of the Government Code. The college must release the remaining information. This ruling does not address the applicability of FERPA to the submitted information. Should the college determine that all or portions of the submitted information consist of "education records" that must be withheld under FERPA, the college must dispose of that information in accordance with FERPA, rather than the Act. 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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, 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 challenge 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 L. Coggeshall Assistant Attorney General Open Records Division JLC/eb Ref: ID# 305234 Enc. Submitted documents c: Mr. Gerald A. Sansing 5426 Chevy Chase Drive Corpus Christi, Texas 78412 (w/o enclosures)
1. Although you raise section 552.101 in conjunction with Texas Rule of Evidence 503, this office has
concluded that section 552.101does not encompass discovery privileges. See Open Records Decision Nos. 676
at 1-2 (2002), 575 at 2 (1990).
A copy of this letter may be found on the Office of the Attorney General's website:
http://www.oag.state.tx.us/opinopen/og_resources.shtml.
In the future, if the college does obtain parental consent to submit unredacted education records and
the college seeks a ruling from this office on the proper redaction of those education records in compliance with
FERPA, we will rule accordingly.
As our ruling is dispositive, we do not address your other arguments to withhold this information.
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. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |