January 7, 2011

Mr. Jame Downes

Assistant County Attorney

County of Harris

1019 Congress, 15th Floor

Houston, Texas 77002

OR2011-00431

Dear Mr. Downes:

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# 405288 (CAO File No. 10GEN2453).

The Harris County Sheriff's Office (the "sheriff") received a request for the personnel files of six named officers. You claim the submitted information is excepted from disclosure under sections 552.101, 552.102, 552.117, 552.1175, 552.119, 552.130, 552.136, 552.137, and 552.147 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽¹⁾

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. Section 552.101 encompasses information made confidential by other statutes, such as section 6103(a) of title 26 of the United States Code. Section 6103(a) 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 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, . . . , 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). Consequently, the sheriff must withhold the W-4 forms we marked pursuant to section 552.101 in conjunction with section 6103(a).

Section 552.101 of the Government Code also encompasses section 1701.454 of the Occupations Code, which governs the release of reports or statements submitted to the Texas Commission on Law Enforcement Officers Standards and Education ("TCLEOSE"). Section 1701.454 provides as follows:

(a) A report or statement submitted to [TCLEOSE] under this subchapter is confidential and is not subject to disclosure under [the Act], unless the person resigned or was terminated due to substantiated incidents of excessive force or violations of the law other than traffic offenses.

(b) Except as provided by this subchapter, a [TCLEOSE] member or other person may not release the contents of a report or statement submitted under this subchapter.

Occ. Code § 1701.454. The remaining information contains an F-5 ("Report of Separation of Licensee") report, which does not indicate the deputy at issue resigned or was terminated due to substantiated incidents of excessive force or violations of the law other than traffic offenses. Therefore, the sheriff must withhold the F-5 report we marked pursuant to section 552.101 in conjunction with section 1701.454.

The remaining information contains L-2 Declaration of Medical Condition and L-3 Declaration of Psychological and Emotional Health forms required by TCLEOSE. These forms are confidential under section 1701.306 of the Occupations Code, which is also encompassed by section 552.101 of the Government Code. Section 1701.306 provides:

(a) [TCLEOSE] may not issue a license to a person as an officer or county jailer unless the person is examined by:

(1) a licensed psychologist or by a psychiatrist who declares in writing that the person is in satisfactory psychological and emotional health to serve as the type of officer for which a license is sought; and

(2) a licensed physician who declares in writing that the person does not show any trace of drug dependency or illegal drug use after a physical examination, blood test, or other medical test.

(b) An agency hiring a person for whom a license as an officer or county jailer is sought shall select the examining physician and the examining psychologist or psychiatrist. The agency shall prepare a report of each declaration required by Subsection (a) and shall maintain a copy of the report on file in a format readily accessible to [TCLEOSE]. A declaration is not public information.

Id. § 1701.306(a), (b). Thus, the sheriff must withhold the L-2 and L-3 declarations we marked under section 552.101 in conjunction with section 1701.306.

Section 552.101 of the Government Code also encompasses section 1703.306 of the Occupations Code, which provides:

(a) A polygraph examiner, trainee, or employee of a polygraph examiner, or a person for whom a polygraph examination is conducted or an employee of the person, may not disclose information acquired from a polygraph examination to another person other than:

(1) the examinee or any other person specifically designated in writing by the examinee;

(2) the person that requested the examination;

(3) a member, or the member's agent, of a governmental agency that licenses a polygraph examiner or supervises or controls a polygraph examiner's activities;

(4) another polygraph examiner in private consultation; or

(5) any other person required by due process of law.

(b) The [Texas Department of Licensing and Regulation] or any other governmental agency that acquires information from a polygraph examination under this section shall maintain the confidentiality of the information.

(c) A polygraph examiner to whom information acquired from a polygraph examination is disclosed under Subsection (a)(4) may not disclose the information except as provided by this section.

Id. § 1703.306. We have marked information that was acquired from a polygraph examination and is, therefore, within the scope of section 1703.306. It does not appear the requestor falls into any of the categories of individuals who are authorized to receive the polygraph information under section 1703.306(a). Accordingly, the sheriff must withhold the information we marked under section 552.101 in conjunction with section 1703.306. However, none of the remaining information was acquired from a polygraph examination. Therefore, the sheriff may not withhold any of the remaining information under section 552.101 in conjunction with section 1703.306.

The Medical Practice Act (the "MPA"), subtitle B of title 3 of the Occupations Code, is also encompassed by section 552.101 of the Government Code. Section 159.002 of the MPA provides in part the following:

(a) A communication between a physician and a patient, relative to or in connection with any professional services as a physician to the patient, is confidential and privileged and may not be disclosed except as provided by this chapter.

(b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter.

(c) A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

Id. § 159.002(a)-(c). Information subject to the MPA includes both medical records and information obtained from those medical records. See id. This office has concluded the protection afforded by section 159.002 extends only to records created by either a physician or someone under the supervision of a physician. See Open Records Decision Nos. 487 (1987), 370 (1983), 343 (1982). Upon review, we marked medical records and information from medical records within the remaining information. The marked information may only be released in accordance with the MPA. However, we find none of the remaining information constitutes a medical record or information from a medical record. Accordingly, the sheriff may not withhold any of the remaining information under section 552.101 in conjunction with the MPA.

The remaining information contains a mental health record. Section 611.002 of the Health and Safety Code governs the public availability of mental health records. Section 611.002, which is also encompassed by section 552.101 of the Government Code, provides in part the following:

(a) Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential.

(b) Confidential communications or records may not be disclosed except as provided by Section 611.004 or 611.0045.

Health & Safety Code § 611.002(a)-(b); see id. § 611.001 (defining "patient" and "professional"). Sections 611.004 and 611.0045 of the Health and Safety Code provide for access to information that is made confidential by section 611.002 only by certain individuals. See id. §§ 611.004, .0045; Open Records Decision No. 565 (1990). We marked a mental health record the sheriff must withhold under section 552.101 in conjunction with section 611.002, unless the requestor is authorized to obtain that information under sections 611.004 and 611.0045.

Section 552.101 of the Government Code also encompasses chapter 411 of the Government Code, which makes confidential criminal history record information ("CHRI") generated by the National Crime Information Center or by the Texas Crime Information Center. See Gov't Code § 411.083(a). Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI states obtain from the federal government or other states. ORD 565. The federal regulations allow each state to follow its individual laws with respect to the CHRI it generates. See id. Section 411.083 of the Government Code deems confidential CHRI the Department of Public Safety ("DPS") maintains, except DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083. Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. §§ 411.090-.127. Thus, any CHRI generated by the federal government or another state may not be made available to the requestor except in accordance with federal regulations. See ORD 565. Furthermore, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 in conjunction with chapter 411, subchapter F of the Government Code. Section 411.083 does not apply to active warrant information or other information relating to one's current involvement with the criminal justice system. See Gov't Code § 411.081(b) (police department allowed to disclose information pertaining to person's current involvement in the criminal justice system). Additionally, CHRI does not include information relating to routine traffic violations. See id. § 411.082(2)(B). The remaining information contains CHRI that is confidential under section 411.083. Thus, the sheriff must withhold this information, which we marked, under section 552.101. However, you have not demonstrated the remaining information at issue constitutes CHRI for purposes of section 411.083. Accordingly, no portion of the remaining information may be withheld under section 552.101 on that basis.

Section 552.101 of the Government Code also encompasses section 560.003 of the Government Code, which provides "[a] biometric identifier in the possession of a governmental body is exempt from disclosure under [the Act]." Id. § 560.003; see id. § 560.001(1) ("biometric identifier" means retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry). The remaining information contains fingerprints. There is no indication the requestor has a right of access to the fingerprints under section 560.002. See id. § 560.002(1)(A) (governmental body may not sell, lease, or otherwise disclose individual's biometric identifier to another person unless the individual consents to disclosure). Therefore, the sheriff must withhold the fingerprints we have marked under section 552.101 of the Government Code in conjunction with section 560.003 of the Government Code.

You also claim portions of the remaining information are excepted from disclosure under section 552.102 of the Government Code. Section 552.102(a) excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Id. § 552.102(a). The Texas Supreme Court recently held section 552.102(a) excepts from disclosure the dates of birth of state employees in the payroll database of the Texas Comptroller of Public Accounts. Tex. Comptroller of Pub. Accounts v. Attorney Gen. of Tex. & The Dallas Morning News, Ltd., No. 08-0172, 2010 WL 4910163 (Tex. Dec. 3, 2010) (Dec. 20, 2010, motions for reconsideration and rehearing pending). Having carefully reviewed the information at issue, we have marked the information that must be withheld under section 552.102(a). The remaining information is not excepted under section 552.102(a) and may not be withheld on that basis.

Section 552.101 of the Government Code 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 (Tex. 1976).

The sheriff contends the submitted internal investigation files are protected by common-law privacy on the basis of Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied). In Morales v. Ellen, the court applied common-law privacy to records of an investigation of alleged sexual harassment in the workplace. As the internal investigation files do not pertain to such investigations, the sheriff may not withhold any of the information at issue under section 552.101 in conjunction with common-law privacy on the basis of Morales v. Ellen.

In Industrial Foundation, the Texas Supreme Court also considered intimate or embarrassing 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. 540 S.W.2d at 683. This office has found some kinds of medical information or information indicating disabilities or specific illnesses is excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). This office has also found that personal financial information not relating to a financial transaction between an individual and a governmental body is generally intimate or embarrassing. See Open Records Decision Nos. 600 at 9-10 (1992), 523 at 3-4 (1989).

However, there is a legitimate public interest in the essential facts about a financial transaction between an individual and a governmental body. See ORD 600 at 9 (information revealing that employee participates in group insurance plan funded partly or wholly by governmental body is not excepted from disclosure); see also Open Decision Nos. 545 (1990) (financial information pertaining to receipt of funds from governmental body or debts owed to governmental body not protected by common law privacy), 523 (1989). Additionally, 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), 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).

Upon review, we have marked the portions of the remaining information that are highly intimate or embarrassing and of no legitimate public interest. The sheriff must withhold the information we marked under section 552.101 in conjunction with common-law privacy. ⁽²⁾ However, the remaining information at issue is not highly intimate or embarrassing or is of legitimate public interest. Accordingly, the sheriff may not withhold any of the remaining information at issue under section 552.101 on the basis of common-law privacy.

Some of the remaining information may be subject to section 552.117 of the Government Code. Section 552.117(a)(2) 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 section 552.1175 of the Government Code. ⁽³⁾ Gov't Code § 552.117(a)(2). Additionally, section 552.117 encompasses personal cellular telephone and pager numbers, provided the cellular telephone and pager services are paid for by the employees with their own funds. See Open Records Decision No. 506 at 5-6 (1988) ( section 552.117 not applicable to cellular mobile phone numbers paid for by governmental body and intended for official use). Accordingly, if the employees whose information we have marked are currently licensed peace officers as defined by article 2.12 of the Code of Criminal Procedure, the sheriff must withhold the marked information under section 552.117(a)(2), but may only withhold the cellular telephone and pager numbers if the services for those numbers are paid for with the employees' own funds. However, if the individuals are no longer peace officers, then section 552.117(a)(2) is not applicable but this information may be subject to section 552.117(a)(1).

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, the sheriff may withhold information under section 552.117(a)(1) on behalf of the employees whose information we marked if the employees made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. Thus, if the employees timely elected to keep their personal information confidential, the sheriff must withhold the information we marked under section 552.117(a)(1), but may only withhold the cellular telephone and pager numbers to the extent the services for those numbers are paid for with the employees' own funds. The sheriff may not withhold this information under section 552.117(a)(1) if the employees did not make timely elections to keep the information confidential, and may not withhold the cellular telephone and pager numbers if the services for those numbers are not paid for with the employees' own funds. ⁽⁴⁾

You also raise section 552.147 of the Government Code. Section 552.147 provides "[t]he social security number of a living person is excepted from" required public disclosure under the Act. Gov't Code § 552.147. Section 552.147(b) 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. See id. § 552.147(b). Thus, regardless of the applicability of section 552.117(a)(1) of the Government Code, we agree the sheriff may withhold the social security numbers within the remaining information under section 552.147.

The remaining records contain information concerning a peace officer who is not employed by the sheriff. 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). The sheriff must withhold the information we marked under section 552.1175 to the extent this information relates to a peace officer who elects to restrict access to the information in accordance with section 552.1175(b).

You raise section 552.119 of the Government Code for the photographs of sheriff employees. Section 552.119 provides the following:

(a) A photograph that depicts a peace officer as defined by Article 2.12, Code of Criminal Procedure, the release of which would endanger the life or physical safety of the officer, is excepted from [required public disclosure] unless:

(1) the officer is under indictment or charged with an offense by information;

(2) the officer is a party in a civil service hearing or a case in arbitration; or

(3) the photograph is introduced as evidence in a judicial proceeding.

(b) A photograph excepted from disclosure under Subsection (a) may be made public only if the peace officer gives written consent to the disclosure.

Id. § 552.119. By its terms, section 552.119 only applies to photographs of licensed peace officers as defined by article 2.12. Id. § 552.119(a). To demonstrate the applicability of section 552.119, a governmental body must demonstrate that release of the photograph would endanger the life or physical safety of the officer. You state some of the information requested pertains to allegations of use of force against inmates. You claim release of photographs of officers working at the jail would place those officers at risk for retaliation by friends and relatives of inmates. Upon review, we find if the officers involved in the use of force incident are currently licensed peace officers, release of their photographs would endanger these officers' lives or physical safety. Therefore, the sheriff must withhold the photographs of these individuals if they are currently licensed peace officers under section 552.119. If these individuals are not currently licensed peace officers, the sheriff may not withhold their photographs under section 552.119. However, we find the sheriff has failed to demonstrate how release of the remaining photographs of individuals not involved in the used of force incident at issue would endanger their lives or physical safety. Thus, the sheriff may not withhold the remaining photographs under section 552.119.

Section 552.130 excepts from disclosure "information [that] relates to … a motor vehicle operator's or driver's license or permit issued by an agency of this state [or] a motor vehicle title or registration issued by an agency of this state." Id. § 552.130(a). In this instance, some of the information you have marked under section 552.130 consists of out-of-state motor vehicle record information. We note section 552.130 does not apply to out-of-state motor vehicle record information. Thus, we find the sheriff must withhold the information we have marked under section 552.130.

Section 552.136 of the Government Code states 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." Gov't Code § 552.136(b). Upon review, we find the sheriff must withhold the routing and checking account numbers and the insurance policy numbers we marked under section 552.136.

Section 552.137 of the Government Code 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 id. § 552.137(a), (b). We note the remaining information does not contain any e-mail addresses. We therefore conclude the sheriff may not withhold any of the remaining information under section 552.137.

In summary, the sheriff must withhold (1) the W-4 forms we marked pursuant to section 552.101 of the Government Code in conjunction with section 6103(a) of title 26 of the United States Code; (2) the F-5 report we marked pursuant to section 552.101 of the Government Code in conjunction with section 1701.454 of the Occupations Code; (3) the L-2 and L-3 declarations we marked under section 552.101 of the Government Code in conjunction with section 1701.306 of the Occupations Code; and (4) the marked polygraph information under section 552.101 of the Government Code in conjunction with section 1703.306 of the Occupations Code. The sheriff may only release the medical information we marked in accordance with the MPA. The sheriff must withhold the marked mental health record under section 552.101 of the Government Code in conjunction with section 611.002 of the Health and Safety Code, unless the requestor is authorized to obtain that information under sections 611.004 and 611.0045 of the Health and Safety Code. The sheriff must also withhold the information we marked under section 552.101 of the Government Code in conjunction with (1) section 411.083 of the Government Code and (2) section 560.003 of the Government Code. The dates of birth we marked must be withheld under section 552.102(a) of the Government Code. The sheriff must withhold the information we marked under section 552.101 of the Government Code in conjunction with common-law privacy. If the employees whose information we marked are currently licensed peace officers, the sheriff must withhold the marked information under section 552.117(a)(2) of the Government Code, but must only withhold the cellular telephone and pager numbers if the services for those numbers are paid for with the employees' own funds. If the employees whose information we marked are not currently licensed peace officers but timely elected to keep their personal information confidential, the sheriff must withhold the information we marked under section 552.117(a)(1) of the Government Code, but must only withhold the cellular telephone and pager numbers to the extent the services for those numbers are paid for with the employees' own funds. If section 552.117(a)(1) is not applicable, the sheriff may withhold the employees' social security numbers we marked under section 552.147 of the Government Code. The sheriff must withhold the information we marked under section 552.1175 of the Government Code to the extent this information relates to a peace officer who elects to restrict access to the information in accordance with section 552.1175(b) of the Government Code. The sheriff must withhold the photographs of the individuals involved with the use of force incident at issue under section 552.119 of the Government Code if these individuals are currently licensed peace officers. The sheriff must withhold (1) the information we marked under section 552.130 of the Government Code and (2) the routing, checking account, and insurance policy numbers we marked under section 552.136 of the Government Code. ⁽⁵⁾ The remaining 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,

Ana Carolina Vieira

Assistant Attorney General

Open Records Division

ACV/eeg

Ref: ID# 405288

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We assume the "representative sample" of information 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 those records contain substantially different types of information than that submitted to this office.

2. As our ruling for this information is dispositive, we need not address your remaining arguments against its disclosure.

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

4. Regardless of the applicability of section 552.117 of the Government Code, 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).

5. In Open Records Decision No. 684 (2009), this office issued a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including: W-4 forms under section 552.101 of the Government Code in conjunction with section 6103(a) of title 26 of the United States Code; fingerprints under section 552.101 of the Government Code in conjunction with section 560.003 of the Government Code; L-2 and L-3 declarations under section 552.101 of the Government Code in conjunction with section 1701.306 of the Occupations Code; Texas driver's license numbers under section 552.130 of the Government Code; and insurance policy numbers, bank account numbers, and bank routing numbers under section 552.136 of the Government Code, 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
An Equal Employment Opportunity Employer