November 1, 2010

Mr. Hyattye O. Simmons

General Counsel

Dallas Area Rapid Transit

P.O. Box 660163

Dallas, Texas 75266-0163

OR2010-16498

Dear Mr. Simmons:

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# 398525 (ORR #7638).

Dallas Area Rapid Transit ("DART") received a request for the personnel records of a former DART police officer, including any internal investigations and disciplinary actions. You claim that the requested information is excepted from disclosure in its entirety under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information. ⁽¹⁾

We begin by noting the submitted information includes records concerning an officer other than the officer named in the request. This information is not responsive to the present request. Accordingly, we have marked these documents, which DART need not release in response to this request and this ruling will not address that information.

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 and excepts from public disclosure private information about an individual if the information (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). To demonstrate the applicability of common-law privacy, both prongs of this test must be satisfied. Id. at 681-82.

The types of information considered highly intimate or 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. 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. See Open Records Decision Nos. 600 (1992) (employee's designation of retirement beneficiary, choice of insurance carrier, election of optional coverages, direct deposit authorization, forms allowing employee to allocate pre-tax 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).

However, the work behavior of a public employee and the conditions for his or her continued employment are generally matters of legitimate public interest not protected by the common-law right of privacy. See Open Records Decision Nos. 438 (1986). Similarly, information about a public employee's qualifications, disciplinary action and background is not protected by common-law privacy. See Open Records Decision Nos. 444 at 5-6 (1986) (public has interest in public employee's qualifications and performance and the circumstances of his resignation or termination), 405 at 2-3 (1983) (public has interest in manner in which public employee performs his job), 329 at 2 (1982) (information relating to complaints against public employees and discipline resulting therefrom is not protected under former section 552.101 or 552.102), 208 at 2 (1978) (information relating to complaint against public employee and disposition of the complaint is not protected under either the constitutional or common-law right of privacy).

You assert that the submitted information is private in its entirety. Upon review, we find that portions of the submitted information are highly intimate or embarrassing and of no legitimate interest to the public. However, the remaining submitted information is not highly intimate or embarrassing and of legitimate concern to the public, and is therefore not private. Accordingly, DART must withhold only the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy.

Section 552.101 also encompasses information made confidential by other statutes, such as 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 also encompasses section 6103(a) of title 26 of the United States Code. Prior decisions of this office have held section 6103(a) of title 26 of the United States Code renders tax return information confidential. 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 income, payments, 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 the determination of the existence, or possible existence, of liability . . . for any tax, . . . penalty, . . ., 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.2d 1111 (4th Cir. 1993). DART must withhold the W-4 form we have marked under section 552.101 of the Government Code in conjunction with federal law.

We note that some of the remaining information may be subject to section 552.117 of the Government Code. ⁽²⁾ Section 552.117(a)(2) of the Government Code excepts from disclosure the current and former home addresses and telephone numbers, social security number, and family member information regarding a peace officer regardless of whether the officer requested confidentiality under section 552.024 or 552.1175 of the Government Code. ⁽³⁾ Gov't Code § 552.117(a)(2). Accordingly, if the former employee is a peace officer as defined by article 2.12 of the Code of Criminal Procedure, DART must withhold the types of information we have marked under section 552.117(a)(2). However, if the individual is no longer a peace officer, then section 552.117(a)(2) is not applicable.

Section 552.117(a)(1) of the Government Code may be applicable to some of the submitted information. We note that section 552.117(a)(1) makes confidential the same types of information covered by section 552.117(a)(2) but for current and former employees of governmental bodies who timely request that this information be kept confidential under section 552.024. Whether a particular piece of 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). Therefore, DART may withhold information under section 552.117(a)(1) on behalf of the former employee only if the employee made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. Provided that the former employee timely elected to keep his personal information confidential, DART must withhold the information we have marked under section 552.117(a)(1) of the Government Code. DART may not withhold this information under section 552.117(a)(1) if the former employee did not make a timely election to keep the information confidential.

The remaining records contain information concerning peace officers who are not employed by DART. Section 552.1175 of the Government Code provides in part:

(a) This section applies only to:

(1) peace officers as defined by Article 2.12, Code of Criminal Procedure[.]

(b) Information that relates to the home address, home telephone number, or social security number of an individual to whom this section applies, or that reveals whether the individual has family members is confidential and may not be disclosed to the public under this chapter if the individual to whom the information relates:

(1) chooses to restrict public access to the information; and

(2) notifies the governmental body of the individual's choice on a form provided by the governmental body, accompanied by evidence of the individual's status.

Gov't Code § 552.1175(a)(1), (b). DART must withhold the information we have marked under section 552.1175 of the Government Code to the extent the marked information relates to peace officers who elect to restrict access to the information in accordance with section 552.1175(b).

Finally, we note that some of the remaining information is excepted under section 552.130 of the Government Code, which provides that information relating to a motor vehicle operator's license or driver's license issued by a Texas agency is excepted from public release. Id. § 552.130(a)(1). DART must withhold the Texas driver's license information we have marked under section 552.130 of the Government Code.

In summary, DART must withhold the following under section 552.101 of the Government Code: (1) the information we have marked in conjunction with common-law privacy; and (2) the I-9 and W-4 forms in conjunction with federal law. Provided that the former employee is a peace officer as defined by article 2.12 of the Code of Criminal Procedure, DART must withhold the information we have marked under section 552.117(a)(2) of the Government Code. If the former employee is not a peace officer as defined by article 2.12, but timely elected to keep his personal information confidential, DART must withhold the information we have marked under section 552.117(a)(1) of the Government Code. DART must also withhold (1) the information we have marked under section 552.1175 of the Government Code, to the extent the marked information relates to a peace officer who elects to restrict access to the information in accordance with section 552.1175(b); and (2) the Texas driver's license information we have marked under section 552.130 of the Government Code. ⁽⁴⁾ DART must release the remaining information. ⁽⁵⁾

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,

Cindy Nettles

Assistant Attorney General

Open Records Division

CN/dls

Ref: ID# 398525

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

2. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

3. "Peace officer" is defined by Article 2.12 of the Texas Code of Criminal Procedure.

4. We note this office recently issued Open Records Decision No. 684, a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including a Form I-9 and attachments under section 552.101 of the Government Code in conjunction with section 1324a of tile 8 of the United States Code, a W-4 form under section 552.101 in conjunction with section 6103(a) of title 26 of the United States Code, and a Texas driver's license number under section 552.130 of the Government Code, without the necessity of requesting an attorney general decision.

5. We note that the remaining information contains social security numbers. 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. Gov't Code § 552.147(b).

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