March 15, 2011

Mr. S. Anthony Safi

Mounce, Green, Myers, Safi, Paxon & Galatzan, PC

P.O. Box 1977

El Paso, Texas 79950

OR2011-03532

Dear Mr. Safi:

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# 411196.

The El Paso Independent School District (the "district"), which you represent, received a request for thirteen categories of information regarding a named district employee. You claim the submitted information is excepted from disclosure under sections 552.101 and 552.102 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽¹⁾

Initially, we note the district has only submitted three evaluations, an exam results report, and one payroll deductions print-out. To the extent information responsive to all other categories of the request existed on the date the district received the request, we assume the district has released it. If not, you 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 that no exceptions apply to requested information, it must release information as soon as possible).

First, you claim the named employee's date of birth is subject to 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." Gov't Code § 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., No. 08-0172, 2010 WL 4910163 (Tex. Dec. 3, 2010). Having carefully reviewed the information at issue, however, we conclude the information does not contain the named employee's date of birth. Thus, none of the submitted information is excepted under section 552.102(a) of the Government Code and no information in question may be withheld on that basis.

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 information other statutes make confidential. Section 21.048 of the Education Code is applicable to information relating to teacher certification examinations. Section 21.048(c-1) states:

The results of an examination administered under this section are confidential and are not subject to disclosure under Chapter 552, Government Code, unless:

(1) the disclosure is regarding notification to a parent of the assignment of an uncertified teacher to a classroom as required by Section 21.057; or

(2) the educator has failed the examination more than five times.

Educ. Code § 21.048(c-1). We note a portion of the submitted information consists of a score report reflecting the results of Texas Examinations of Educator Standards examinations administered to the named employee. Subsections 21.048(c-1)(1) and (2) do not appear to be applicable in this instance. We therefore conclude the district must withhold the results of the examinations, which we have marked, under section 552.101 of the Government Code in conjunction with section 21.048 of the Education Code.

Section 552.101 of the Government Code also encompasses section 21.355 of the Education Code. Section 21.355 provides that "[a] document evaluating the performance of a teacher or administrator is confidential." Id. § 21.355. This office has interpreted section 21.355 to apply to any document that evaluates, as that term is commonly understood, the performance of a teacher or an administrator. See Open Records Decision No. 643 (1996). We have determined that 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 or a school district teaching permit under section 21.055 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. Additionally, a court has concluded a written reprimand constitutes an evaluation for purposes of section 21.355 because "it reflects the principal's judgment regarding [a teacher's] actions, gives corrective direction, and provides for further review." See North East Indep. Sch. Dist. v. Abbott, 212 S.W.3d 364 (Tex. App.--Austin 2006, no pet.).

You contend the three submitted evaluations are made confidential by section 21.355. You state the teacher was required to hold and did hold appropriate classroom teacher certification at the time of the evaluations. However, upon review, two of the evaluations relate to the named employee's duties as a coach. You have not explained how this information evaluates the employee's teaching performance as contemplated by section 21.355 of the Education Code. See Educ. Code § 21.353 (teachers shall be appraised only on basis of classroom teaching performance and not in connection with extracurricular activities). Thus, those two evaluations may not be withheld under section 552.101 in conjunction with section 21.355. However, we find the remaining evaluation evaluates the named employee's performance as a teacher, and therefore must be withheld under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code.

Section 552.101 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, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be satisfied. Id. at 681-82. This office has found an employee's voluntary financial choices are highly intimate and embarrassing for purposes of common-law privacy. See Open Records Decision Nos. 600 (1992) (personal financial information protected by common-law privacy includes 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). 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 Records 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). Whether financial information is subject to a legitimate public interest and therefore not protected by common-law privacy must be determined on a case-by-case basis. See Open Records Decision No. 373 (1983).

Upon review, we have marked the portions of the submitted payroll deductions print-out that reveal personal financial decisions of the named employee that are of no legitimate public interest. The district must withhold this marked information under section 552.101 of the Government Code in conjunction with common-law privacy. However, the remaining information either does not reveal personal financial decisions or involves a transaction between the named employee and the district. Thus, no remaining information may be withheld under section 552.101 on the basis of common-law privacy.

We note some remaining information may be subject to section 552.117(a)(1) of the Government Code. ⁽²⁾ 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 this information be kept confidential under section 552.024. See Gov't Code § 552.117(a)(1). 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. Therefore, if the named employee timely requested confidentiality for his personal information under section 552.024, the district must withhold the information we marked under section 552.117(a)(1). However, if this employee did not so elect, the information we marked must be released. ⁽³⁾

In summary, the district must withhold the information we marked under section 552.101 of the Government Code in conjunction with sections 21.048 and 21.355 of the Education Code and common-law privacy. The district must also withhold the information we marked under section 552.117(a)(1) of the Government Code if the named employee elected to keep this information confidential prior to the district's receipt of the request for information. The remaining 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,

Bob Davis

Assistant Attorney General

Open Records Division

RSD/tf

Ref: ID# 411196

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We assume 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. Regardless of the applicability of section 552.117, 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. See Gov't Code § 552.147(b).

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