June 25, 2010

Ms. Ylise Janssen

Senior School Law Attorney

Austin Independent School District

1111 West Sixth Street

Austin, Texas 78703-5338

OR2010-09404

Dear Ms. Janssen:

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# 384326.

The Austin Independent School District (the "district") received a request for e-mails from a named employee of the district that mention the requestor's name or title. ⁽¹⁾ You state that some of the requested information has been released. You claim that 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 information you submitted. ⁽²⁾

We first note that a portion of an e-mail address has been redacted from the submitted information. Section 552.301 of the Government Code prescribes procedures that a governmental body must follow in asking this office to determine whether requested information is excepted from public disclosure. See Gov't Code §§ 552.301, .302. Pursuant to section 552.301(e)(1)(D), the governmental body must submit the specific information at issue to this office, or submit representative samples if the information is voluminous, except to the extent that the information is the subject of a previous determination. See id. § 552.301(a), (e)(1)(D); Open Records Decision No. 673 (2001) (previous determinations). In this instance, we are able to ascertain the nature of the redacted information and thus are able to determine whether it is excepted from disclosure. For future reference, however, the district should refrain from redacting any information from records that are submitted to this office in connection with a request for a decision, unless the district has specific authorization to do so under the Act. See Gov't Code §§ 552.024(c), .147(g); ORD 673 at 7-8.

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. You claim section 552.101 in conjunction with common-law 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. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). Common-law privacy encompasses 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 determined 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).

You contend that all of the submitted information is protected by common-law privacy under section 552.101. You also argue that the highlighted portions of the information in question are intimate and embarrassing and of no legitimate public interest. We note that the submitted information pertains to employees of the district and their conduct as such. As this office has explained on many occasions, the public generally has a legitimate interest in information relating to public employees and public employment. See, e.g., 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), 470 at 4 (1987) (job performance does not generally constitute public employee's private affairs), 444 at 3 (1986) (public has obvious interest in information concerning qualifications and performance of government employees), 405 at 2 (1983) (manner in which public employee's job was performed cannot be said to be of minimal public interest), 329 (1982) (reasons for employee's resignation ordinarily not private). Having considered your arguments and reviewed the information at issue, we find that the information we have marked is highly intimate or embarrassing and not a matter of legitimate public interest. Thus, the district must withhold that information under section 552.101 of the Government Code in conjunction with common-law privacy. We conclude that none of the remaining information at issue is highly intimate or embarrassing and of no legitimate public concern. Therefore, the district may not withhold any of the remaining information under section 552.101 in conjunction with common-law privacy.

We note that sections 552.117 and 552.137 of the Government Code are or may be applicable to some of the remaining information. ⁽³⁾ 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 employee of a governmental body who requests that this information be kept confidential under section 552.024 of the Government Code. We note that section 552.117 is applicable to an employee's personal cellular telephone number if the employee pays for the cell phone service. See Open Records Decision No. 506 at 5-6 (1988). 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). Thus, information may only be withheld under section 552.117(a)(1) on behalf of a current or former employee who made a request for confidentiality under section 552.024 prior to the date of the governmental body's receipt of the request for the information. Information may not be withheld under section 552.117(a)(1) on behalf of a current or former employee who did not timely request under section 552.024 that the information be kept confidential. The cell telephone number we have marked must be withheld under section 552.117(a)(1) if it is the employee's personal cell phone number and if he timely requested confidentiality under section 552.024.

Section 552.137 of the Government Code provides in part that "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 or the e-mail address falls within the scope of section 552.137(c). See Gov't Code § 552.137(a)-(c). We have marked personal e-mail addresses that must be withheld under section 552.137, unless the owner of an e-mail address has affirmatively consented to its public disclosure. ⁽⁴⁾ We note that section 552.137 does not apply to an institutional e-mail address, an Internet website address, or an e-mail address that a governmental entity maintains for one of its officials or employees. Thus, this exception is not applicable to the redacted portion of an e-mail address that the district maintains for one of its employees. Therefore, the redacted information may not be withheld under section 552.137 and must be released.

In summary: (1) the district must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy; (2) the cell telephone number we have marked must be withheld under section 552.117(a)(1) of the Government Code if it is the employee's personal cell phone number and if he timely requested confidentiality under section 552.024 of the Government Code; and (3) the personal e-mail addresses we have marked must be withheld under section 552.137 of the Government Code, unless the owner of an e-mail address has affirmatively consented to its public disclosure. The rest of the submitted information must be released.

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,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/sdk

Ref: ID# 384326

Enc: Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. You inform us that the requestor subsequently narrowed his initial request. See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information).

2. To the extent that the submitted information is a representative sample of the information at issue, 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 district 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).

3. This office will raise sections 552.117 and 552.137 on behalf of a governmental body, as these exceptions are mandatory and may not be waived. See Gov't Code §§ 552.007, .352; Open Records Decision No. 674 at 3 n.4 (2001) (mandatory exceptions).

4. We note that 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 an e-mail address of a member of the public under section 552.137, 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
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