 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 8, 2010 Ms. Bertha Bailey Whatley Chief Legal Counsel Fort Worth Independent School District 100 North University Drive Fort Worth, Texas 76107 OR2010-01862 Dear Ms. Whatley: 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# 369517. The Fort Worth Independent School District (the "district") received a request for the personnel files of two named district employees and the district's policy on a specified subject. We note you have redacted social security numbers in the submitted documents. (1) You claim the submitted information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information. We note you have not submitted information responsive to the portion of the request seeking the district's policy on a specified subject. To the extent any information responsive to this portion of the request existed on the date the district received the request, we assume the district has released it. If the district has not released any such information, it must do so at this time. See Gov't Code §§ 552.301(a), .302; see also Open Records Decision No. 664 (2000) (if governmental body concludes no exceptions apply to requested information, it must release information as soon as possible). 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 section encompasses information protected by other statutes. You raise section 552.101 in conjunction with the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") for portions of the submitted information. At the direction of Congress, the Secretary of Health and Human Services ("HHS") promulgated regulations setting privacy standards for medical records, which HHS issued as the Federal Standards for Privacy of Individually Identifiable Health Information. See HIPAA, 42 U.S.C. § 1320d-2 (Supp. IV 1998) (historical & statutory note); Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Pts. 160, 164 ("Privacy Rule"); see also Attorney General Opinion JC-0508 at 2 (2002). These standards govern the releasability of protected health information by a covered entity. See 45 C.F.R. pts. 160, 164. Under these standards, a covered entity may not use or disclose protected health information, excepted as provided by parts 160 and 164 of the Code of Federal Regulations. 45 C.F.R. § 164.502(a). This office has addressed the interplay of the Privacy Rule and the Act. Open Records Decision No. 681 (2004). In that decision, we noted section 164.512 of title 45 of the Code of Federal Regulations provides a covered entity may use or disclose protected health information to the extent such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law. See 45 C.F.R. § 164.512(a)(1). We further noted the Act "is a mandate in Texas law that compels Texas governmental bodies to disclose information to the public." See Open Records Decision No. 681 at 8 (2004); see also Gov't Code §§ 552.002, .003, .021. We therefore held the disclosures under the Act come within section 164.512(a). Consequently, the Privacy Rule does not make information confidential for the purpose of section 552.101 of the Government Code. See Abbott v Tex Dep't of Mental Health & Mental Retardation, 212 S.W.3d 648 (Tex. App.--Austin 2006, no pet.); ORD 681 at 9 (2004); see also Open Records Decision No. 478 (1987) (as general rule, statutory confidentiality requires express language making information confidential). Because the Privacy Rule does not make confidential information that is subject to disclosure under the Act, the district may not withhold the information at issue on that basis. Section 552.101 also encompasses information protected by other statutes. Prior decisions of this office have held section 6103(a) of title 26 of the United States Code renders tax return information confidential. See Attorney General Opinion H-1274 (1978) (tax returns); Open Records Decision No. 600 (1992) (W-4 forms). Section 6103(b) defines the term "return information" as "a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments . . . or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary [of the Internal Revenue Service] with respect to a return or with respect to the determination of the existence, or possible existence, of liability . . . for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense[.]" See 26 U.S.C.§ 6103(b)(2)(A). Federal courts have construed the term "return information" expansively to include any information gathered by the Internal Revenue Service regarding a taxpayer's liability under title 26 of the United States Code. See Mallas v. Kolak, 721 F. Supp 748, 754 (M.D.N.C. 1989), aff'd in part, 993 F.2d1111 (4th Cir. 1993). Thus, the submitted W-4 forms, which we have marked, constitute tax return information that are confidential under federal law and must be withheld under section 552.101 of the Government Code. Section 552.101 of the Government Code also encompasses section 1324a of title 8 of the United States Code. Section 1324a governs I-9 forms and their related documents. This section provides an I-9 form and "any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter" and for enforcement of other federal statutes governing crime and criminal investigations. See 8 U.S.C. § 1324a(b)(5); see also 8 C.F.R. § 274a.2(b)(4). Accordingly, we conclude the submitted I-9 form is confidential for purposes of section 552.101 of the Government Code and may only be released in compliance with the federal laws and regulations governing the employment verification system. See 8 U.S.C. § 1324a(b)(1)(B)-(D); 8 C.F.R. § 274a.2(b)(1)(v)(A)-(C). Section 552.101 of the Government Code also encompasses section 21.355 of the Education Code, which provides, "[a] document evaluating the performance of a teacher or administrator is confidential." Educ. Code § 21.355. This section applies to any document that evaluates, as that term is commonly understood, the performance of a teacher or administrator. See Open Records Decision No. 643 (1996). In Open Records Decision No. 643, we determined for purposes of section 21.355, the word "teacher" means a person who is required to and does in fact hold a teaching certificate under subchapter B of chapter 21 of the Education Code and who is engaged in the process of teaching, as that term is commonly defined, at the time of the evaluation. See id. at 4. You state the named teachers held the appropriate teaching certificates at the times of the evaluations. Based on your representations and our review of the information at issue, we conclude the information we have marked consists of teacher evaluations for the purposes of section 21.355. Therefore, the district must withhold the information we have marked under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. Section 552.101 also encompasses common-law privacy. For information to be protected from public disclosure by the common law right of privacy, the information must meet the criteria set out by the Texas Supreme Court in Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976). In Industrial Foundation, the Texas Supreme 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. Id. at 685. To demonstrate the applicability of common-law privacy, both prongs of this test must be demonstrated. See id. at 681-82. The type 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. See id. at 683. Additionally, this office has found some kinds of medical information or information indicating disabilities or specific illnesses are excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 470 (1987) (information pertaining to illness from severe emotional and job-related stress protected by common-law privacy), 455 (1987) (information pertaining to prescription drugs, specific illnesses, operations and procedures, and physical disabilities protected from disclosure). Furthermore, this office has found that personal financial information not relating to a financial transaction between an individual and a governmental body is excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 600 (1992) (finding personal financial information to include designation of beneficiary of employee's retirement benefits and optional insurance coverage; choice of particular insurance carrier; direct deposit authorization; and forms allowing employee to allocate pretax compensation to group insurance, health care, or dependent care), 545 (1990) (deferred compensation information, participation in voluntary investment program, election of optional insurance coverage, mortgage payments, assets, bills, and credit history). Upon review, we find the information we have marked is highly intimate or embarrassing and not of legitimate public concern. Thus, the district must withhold the information we have marked under section 552.101 of the Government Code in conjunction with the common-law right of privacy. However, you have failed to demonstrate how the remaining information you have marked is highly intimate or embarrassing and not of legitimate public interest. Thus, no portion of the remaining information at issue may be withheld under section 552.101 of the Government Code in conjunction with common-law privacy. Section 552.102 of the Government Code excepts from public disclosure "a transcript from an institution of higher education maintained in the personnel file of a professional public school employee[.]" Gov't Code § 552.102(b). (2) This exception further provides, however, that "the degree obtained or the curriculum on a transcript in the personnel file of the employee" are not excepted from disclosure. Id.; see also Open Records Decision No. 526 (1989). Thus, with the exception of the employees' names, courses taken, and degrees obtained, the district must withhold the submitted college transcripts, which we have marked, pursuant to section 552.102(b) of the Government Code. The submitted information includes information that may be subject to section 552.117 of the Government Code. (3) Section 552.117 excepts from disclosure the 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. See id. § 552.117(a)(1). Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Review of the submitted information reveals the named female employee timely elected confidentiality for her personal information under section 552.024. Thus, the district must withhold the information we have marked pertaining to this employee under section 552.117(a)(1). However, we are unable to determine, and you do not indicate, whether the named male employee timely elected confidentiality for his personal information under section 552.024. To the extent this employee timely elected confidentiality in accordance with section 552.024, the district must withhold the information we have marked under section 552.117(a)(1). You state a portion of the information at issue was provided to the district under a promise of confidentiality. In furtherance of your argument, you cite Open Records Decision No. 284 (1981), which concluded letters of recommendation exchanged under a promise of confidentiality prior to June 14, 1973, the effective date of the Act, may be withheld. See ORD 284. You contend the information at issue was provided to the district under a promise of confidentiality prior to the Act's effective date. We note, however, one of the documents at issue is a district employee's evaluation of the individual at issue. Thus, this document was created by the district in the transaction of official district business, and was not provided to the district under a promise of confidentiality. The remaining documents were provided to the district in 1975, after the effective date of the Act. Accordingly, the reasoning in Open Records Decision No. 284 is not applicable to the documents at issue. We note information is not confidential under the Act simply because the party that submits the information anticipates or requests that it be kept confidential. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976). In other words, a governmental body cannot overrule or repeal provisions of the Act through an agreement or contract. See Attorney General Opinion JM-672 (1987); Open Records Decision Nos. 541 at 3 (1990) ("[T]he obligations of a governmental body under [the Act] cannot be compromised simply by its decision to enter into a contract."), 203 at 1 (1978) (mere expectation of confidentiality by person supplying information does not satisfy requirements of statutory predecessor to section 552.110). Thus, no portion of the information at issue may be withheld based on the promise of confidentiality. In summary, the district must withhold the information we have marked under section 552.101 in conjunction with section 6103(a) of title 26 of the United States Code. The district must withhold the submitted I-9 form under section 552.101 in conjunction with section 1324a of title 8 of the United States Code. The district must withhold the submitted teacher evaluations, which we have marked, under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. The district must withhold the information we have marked under section 552.101 of the Government Code in conjunction with the common-law right of privacy. With the exception of the employees' names, courses taken, and degrees obtained, the district must withhold the marked college transcripts pursuant to section 552.102(b) of the Government Code. The district must withhold under section 552.117(a)(1) of the Government Code the marked personal information of the employee who timely elected confidentiality. To the extent the other employee timely elected confidentiality in accordance with section 552.024, the district must withhold the information we have marked under section 552.117(a)(1). The remaining submitted information must be released. (4) This letter ruling is limited to the particular information 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 information or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free at (888) 672-6787. Sincerely, Claire V. Morris Sloan Assistant Attorney General Open Records Division CVMS/jb Ref: ID# 369517 Enc. Submitted documents c: Requestor (w/o enclosures)
1. 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. See Gov't Code § 552.147(b).
Although you claim section 552.101 of the Government Code for the submitted transcripts,
section 552.102 is the proper exception to raise in this instance.
The Office of the Attorney General will raise a mandatory exception like section 552.117 on behalf
of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481
(1987), 480 (1987), 470 (1987).
We note this office recently issued Open Records Decision No. 684 (2009), a previous determination
to all governmental bodies authorizing them to withhold ten categories of information, including I-9 forms
under section 552.101 of the Government Code in conjunction with 8 U.S.C. § 1324a and W-4 forms under
section 552.101 of the Government Code in conjunction with 26 U.S.C. § 6103(a), without the necessity of
requesting an attorney general decision. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |