 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 25, 2008 Ms. Margo M. Kaiser Staff Attorney - Open Records Unit Texas Workforce Commission 101 East 15th Street Austin, Texas 78778-0001 OR2008-02428 Dear Ms. Kaiser: 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# 302982. The Texas Workforce Commission (the "commission") received a request for Payday claims filed against a named employer. (1) You state that the commission will redact social security numbers. (2) You also state that the commission will release some of the requested information. You claim that portions of the submitted information are excepted from disclosure under section 552.101 of the Government Code. You further state that release of a portion of the submitted information may implicate the proprietary interests of a third party. Accordingly, you state, and provide documentation demonstrating, that you notified SimplexGrinnell LP ("SimplexGrinnel") of the commission's receipt of the request for information and its right to submit arguments to this office as to why the requested information should not be released to the requestor. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in the Act in certain circumstances). We have considered the exception you claim and reviewed the submitted representative sample of information. (3) We note that an interested third party is allowed ten business days after the date of its receipt of the governmental body's notice under section 552.305(d) of the Government Code to submit its reasons, if any, as to why requested information relating to it should be withheld from disclosure. See Gov't Code § 552.305(d)(2)(B). As of the date of this letter, SimplexGrinnell has not submitted to this office any reasons explaining why the requested information should not be released. Therefore, SimplexGrinnell has failed to provide us with any basis to conclude that it has a protected proprietary interest in any of the submitted information, and none of the information may be withheld on that basis. See Open Records Decision Nos. 661 at 5-6 (1999) (to prevent disclosure of commercial or financial information, party must show by specific factual evidence, not conclusory or generalized allegations, that release of requested information would cause that party substantial competitive harm), 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990). The commission states that the submitted information is Payday claim file information. You explain that the commission accepts and investigates claims from workers alleging that they consistently have not received payment for work. Upon receipt of these claims, the commission creates a file, some of which you assert is not subject to public disclosure. 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. 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). This office has found that financial information relating only to an individual ordinarily satisfies the first requirement of the test for common-law privacy, but that there is a legitimate public interest in the essential facts about a financial transaction between an individual and a governmental body. See Open Records Decision Nos. 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), 523 (1989) (information related to an individual's mortgage payments, assets, bills, and credit history is excepted from disclosure under the common law right to privacy). The commission asserts that the marked information constitutes personal financial information. Upon review, we determine that, with the exception of the information we have marked for release, the information you have marked as well as the additional information we have marked, consists of personal financial information that must be withheld under section 552.101 of the Government Code in conjunction with common-law privacy. However, we find that the information we have marked for release does not constitute highly intimate or embarrassing information that is of no legitimate concern to the public. Therefore, the commission may not withhold the information we have marked for release under section 552.101 in conjunction with common-law privacy. We note that the submitted information includes an e-mail address. Section 552.137 of the
Government Code states in part that "[e]xcept as otherwise provided by this section, an
e-mail address of a member of the public that is provided for the purpose of communicating
electronically with a governmental body is confidential and not subject to disclosure under
[the Act]," unless the owner of the e-mail address has affirmatively consented to its public
disclosure. (4)
Id. § 552.137(a). The types of e-mail addresses listed in section 552.137(c) may
not be withheld under this exception. See id. § 552.137(c). The e-mail address we have
marked is not of a type specifically excluded by section 552.137(c). Therefore, unless the
individual whose e-mail address is at issue consented to release of his e-mail address, the
commission must withhold the marked e-mail address under section 552.137. In summary, with the exception of the information we have marked for release, the
commission must withhold the information you have marked, as well as the additional
information we have marked, under section 552.101 of the Government Code in conjunction
with common-law privacy. The commission must withhold the information we have marked
under section 552.137 of the Government Code. The remaining 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 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, Jennifer Luttrall Assistant Attorney General Open Records Division JL/eeg Ref: ID# 302982 Enc. Submitted documents c: Mr. Bruce E. Menken Beranbaum Menken Ben-Asher & Bierman LLP 80 Pine Street, 32nd Floor New York, New York 10005 (w/o enclosures) Str Grinnell GP Holding et. all SimplexGrinnnell LP P.O. Box 283 Saint Louis, Missouri 63166 (w/o enclosures)
1. We note that the commission asked for and received clarification regarding this request. See Gov't
Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing
request for information); see also Open Records Decision No. 663 (1999) (discussing tolling of deadlines
during period in which governmental body is awaiting clarification).
2. 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 |