January 18, 2011

Ms. Cynthia Villarreal-Reyna

Section Chief, Agency Counsel

Legal and Regulatory Affairs Division MC 110-1A

Texas Department of Insurance

P.O. Box 149104

Austin, Texas 78714-9104

OR2011-00831

Dear Ms. Villarreal-Reyna:

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# 406247 (TDI # 109926).

The Texas Department of Insurance (the "department") received a request for communications with and complaints filed by a named law firm during a specified time interval. ⁽¹⁾ You state some of the requested information either has been or will be released. Although you take no position on the public availability of the submitted information, you believe the information at issue may implicate the proprietary interests of Empire Indemnity Insurance Company ("Empire"). You inform us Empire was notified of this request for information and of its right to submit arguments to this office as to why the information should not be released. ⁽²⁾ We have reviewed the submitted information.

An interested third party is allowed ten business days from the date of its receipt of the governmental body's notice under section 552.305 of the Government Code to submit its reasons, if any, why information relating to the party should not be released. See Gov't Code § 552.305(d)(2)(B). As of the date of this decision, this office has received no correspondence from Empire. Thus, because Empire has not demonstrated any of the information at issue is proprietary for purposes of the Act, the department may not withhold any of the submitted information on the basis of any interest Empire may have in the information. See id. § 552.110(a)-(b); Open Records Decision Nos. 552 at 5 (1990), 661 at 5-6 (1999).

We note sections 552.101, 552.136, and 552.137 of the Government Code are applicable to some of the information at issue. ⁽³⁾ 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 exception encompasses 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). Personal financial information related only to an individual ordinarily satisfies the first element of the common-law privacy test, but the public has a legitimate 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) ("In general, we have found the kinds of financial information not excepted from public disclosure by common-law privacy to be those regarding the receipt of governmental funds or debts owed to governmental entities"), 523 at 4 (1989) (noting distinction under common-law privacy between confidential background financial information furnished to public body about individual and basic facts regarding particular financial transaction between individual and public body), 373 at 4 (1983) (determination of whether public's interest in obtaining personal financial information is sufficient to justify its disclosure must be made on case-by-case basis). We have marked the types of personal financial information contained in the submitted documents that are highly intimate or embarrassing and not a matter of legitimate public interest. The department must withhold those types of information under section 552.101 of the Government Code in conjunction with common-law privacy.

Section 552.136 of the Government Code provides that "[n]otwithstanding any other provision of [the Act], 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); see id. § 552.136(a) (defining "access device"). This office has determined an insurance policy number is an access device for purposes of this exception. The department must withhold the insurance policy number we have marked under section 552.136 of the Government Code.

Section 552.137 of the Government Code provides 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). Id. § 552.137(a)-(c). Section 552.137 is not applicable to an institutional e-mail address, an Internet website address, or an e-mail address a governmental entity maintains for one of its officials or employees. The department must withhold the e-mail addresses we have marked under section 552.137 of the Government Code, unless the owner of an e-mail address has consented to its disclosure.

In summary, the department must withhold (1) the marked types of personal financial information under section 552.101 of the Government Code in conjunction with common-law privacy, (2) the marked insurance policy number under section 552.136 of the Government Code, and (3) the marked e-mail addresses under section 552.137 of the Government Code, unless the owner of an e-mail address has consented to its disclosure. ⁽⁴⁾ The department must release the rest of the submitted information.

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/em

Ref: ID# 406247

Enc: Submitted documents

c: Requestor

(w/o enclosures)

Ms. Nancy Mueller

Empire Indemnity Insurance Company

1400 American Lane Tower 1 19^th Floor

Schaumburg, Illinois 60196-1056

(w/o enclosures)

Mr. Sean Mount

Hailey, McNamara, Hall, Larmann & Papale LLP

Attorneys for Empire Indemnity Insurance Company

P.O. Box 8288

Metairie, Louisiana 70011

(w/o enclosures)

Footnotes

1. We note the department sought and received clarification of the request. See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information).

2. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (statutory predecessor to Gov't Code § 552.305 permitted governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under certain circumstances).

3. This office will raise sections 552.101, 552.136, and 552.137 on behalf of a governmental body, as these sections are mandatory exceptions. See Gov't Code §§ 552.007, .352; Open Records Decision No. 674 at 3 n.4 (2001) (mandatory exceptions).

4. We note this office issued Open Records Decision No. 684 (2009), a previous determination authorizing all governmental bodies to withhold ten categories of information without the necessity of requesting an attorney general decision, including an insurance policy number under section 552.136 and an e-mail address of a member of the public under section 552.137.

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