March 28, 2011

Mr. Warren M. S. Ernst

Chief of the General Counsel Division

City of Dallas

1500 Marilla Street

Dallas, Texas 75201

OR2011-04203

Dear Mr. Ernst:

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# 412524.

The City of Dallas (the "city") received a request for four categories of information pertaining to the investigation of a named individual. You state the city will release some information to the requestor. You claim portions of the submitted information are excepted from disclosure under sections 552.101, 552.117, and 552.139 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. This exception encompasses the doctrine of common-law privacy, which protects information if (1) the information contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. See 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 met. Id. at 681-82. This office has found that financial information that relates 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. 600 at 9-12 (1992) (identifying public and private portions of certain state personnel records), 545 at 4 (1990) (attorney general has found kinds of financial information not excepted from public disclosure by common-law privacy to generally be those regarding 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), 423 at 2 (1984) (scope of public employee privacy is narrow), 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). You claim portions of the submitted payroll register are protected by common-law privacy. However, upon review, we find you have failed to demonstrate that any portion of the information you have marked in the payroll register constitutes personal financial information that is not of legitimate public interest for purposes of common-law privacy. Accordingly, none of the information you have marked in the payroll register may be withheld under section 552.101 in conjunction with common-law privacy.

You assert the submitted information contains information that may be subject to section 552.117 of the Government Code. Section 552.117 excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024 of the Government Code. Gov't Code § 552.117(a)(1). 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 city must withhold information under section 552.117 on behalf of current or former officials or employees only if these individuals made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. Accordingly, if the individuals whose information is at issue are current or former employees who timely-elected to keep their personal information confidential pursuant to section 552.024, the city must withhold the information you have marked under section 552.117(a)(1) of the Government Code. However, the city may not withhold this information under section 552.117(a)(1) for employees who did not make a timely election to keep the information confidential.

We note you have marked e-mail addresses in the submitted information. 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). ⁽²⁾ Gov't Code § 552.137(a)-(c). We note the e-mail addresses you have marked are not of the types specifically excluded by section 552.137(c) of the Government Code. Accordingly, the city must withhold the e-mail addresses you have marked under section 552.137, unless the owners consent to disclosure. ⁽³⁾

You contend portions of the remaining information are excepted from disclosure under section 552.139 of the Government Code, which provides:

(a) Information is excepted from [required public disclosure] if it is information that relates to computer network security, to restricted information under Section 2059.055 [of the Government Code], or to the design, operation, or defense of a computer network.

Gov't Code § 552.139(a). Section 2059.055 of the Government Code provides in pertinent part:

(b) Network security information is confidential under this section if the information is:

(1) related to passwords, personal identification numbers, access codes, encryption, or other components of the security system of a state agency;

(2) collected, assembled, or maintained by or for a governmental entity to prevent, detect, or investigate criminal activity; or

(3) related to an assessment, made by or for a governmental entity or maintained by a governmental entity, of the vulnerability of a network to criminal activity.

Id. § 2059.055(b). You state the information you have marked under section 552.139 constitutes internet protocol addresses, computer names, security identifiers, system identifiers, and server names. You state if this information was released, there is a potential for unauthorized parties to attempt to use such information to access and mount attacks against the city's networks and servers. You further state this could result in a breach in security for the city's information technology infrastructure. Therefore, based on your representations and our review, we agree the information you have marked must be withheld under section 552.139 of the Government Code.

In summary, the city must withhold the information you have marked under section 552.117(a)(1) of the Government Code if the individuals whose information is at issue are current or former employees who timely-elected to keep their personal information confidential pursuant to section 552.024 of the Government Code. However, the city may not withhold this information under section 552.117(a)(1) for employees who did not make a timely election to keep the information confidential. The city must withhold the e-mail addresses you have marked under section 552.137, unless the owners consent to disclosure. The city must withhold the information you have marked under section 552.139 of the Government Code. As you raise no further exceptions to disclosure, the remaining information must be released to the requestor.

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,

Sean Nottingham

Assistant Attorney General

Open Records Division

SN/eeg

Ref: ID# 412524

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 those submitted to this office.

2. The Office of the Attorney General will raise mandatory exceptions on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

3. 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 the 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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