July 5, 2011

Mr. Carey E. Smith

General Counsel

Texas Health and Human Services Commission

P.O. Box 13247

Austin, Texas 78711

OR2011-09485

Dear Ms. Smith:

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# 422718 (OR-20110415-5872).

The Texas Health and Human Services Commission (the "commission") received a request for all complaints filed against the requestor during a specified period and findings from a specified review conducted by the commission's civil rights office. You claim the submitted information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted 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 common-law privacy, which excepts from disclosure private facts about an individual. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). Information is excepted from required public disclosure by a common-law right of privacy if the information (1) 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. Id.

In this case, a portion of the submitted information pertains to an investigation of alleged sexual harassment. In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court addressed the applicability of the common-law privacy doctrine to files of an investigation of allegations of sexual harassment. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. Id. at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the public's interest was sufficiently served by the disclosure of such documents. Id. In concluding, the Ellen court held that "the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id. Thus, if there is an adequate summary of an investigation of alleged sexual harassment, the investigation summary must be released under Ellen, but the identities of the victims and witnesses of the alleged sexual harassment generally must be redacted, and their detailed statements withheld from disclosure. See Open Records Decision Nos. 393 (1983), 339 (1982). If no adequate summary of the investigation exists, then all of the information relating to the investigation ordinarily must be released, with the exception of information that would identify the victims and witnesses. Because common-law privacy does not protect information about a public employee's alleged misconduct on the job or complaints made about a public employee's job performance, the identity of the individual accused of sexual harassment is not protected from public disclosure. See 840 S.W.2d at 525; Open Records Decision Nos. 438 (1986), 405 (1983), 230 (1979), 219 (1978). We also note supervisors are not witnesses for purposes of Ellen, and thus, supervisors' identities generally may not be withheld under section 552.101 of the Government Code in conjunction with common-law privacy.

Upon review, we find one of the five submitted complaint files involves allegations of sexual harassment, and that the remaining information at issue contains references to that investigation. Additionally, the submitted information includes an adequate summary of the sexual harassment investigation. Therefore, the commission must withhold all information pertaining to the alleged sexual harassment that is not contained in the adequate summary under section 552.101 in conjunction with common-law privacy under Ellen. Although the summary is not confidential in its entirety, any information identifying alleged victims or witnesses is confidential and must be withheld. See Ellen, 840 S.W.2d at 525. Upon review, we have marked the information in the adequate summary that identifies witnesses and victims of the alleged harassment. This marked information must be withheld under section 552.101 in conjunction with common-law privacy. However, the remaining portions of the submitted complaint files do not pertain to allegations of sexual harassment. Because you do not provide arguments explaining how the remaining information is made confidential by section 552.101 of the Government in conjunction with common-law privacy and Ellen, we conclude no remaining information may be withheld on that basis.

Section 552.117 of the Government Code may also be applicable to some of the submitted information. ⁽¹⁾ Section 552.117(a)(1) excepts from disclosure the home addresses and telephone numbers, emergency contact information, 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. Act of May 24, 2011, 82^nd Leg., R.S., S.B. 1638, § 2 (to be codified as an amendment to Gov't Code § 552.117(a)). Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). The commission may only withhold information under section 552.117(a)(1) on behalf of employees who made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. Thus, to the extent the individuals whose personal information we have marked elected to keep this information confidential, the commission must withhold this information under section 552.117(a)(1) of the Government Code. The commission may not withhold this information if the employee did not make a timely election to keep the information confidential.

In summary, the commission must withhold the information we marked under section 552.101 of the Government Code in conjunction with common-law privacy and the court's holding in Ellen. The commission must also withhold the information we marked under section 552.117(a)(1) of the Government Code to the extent the employees concerned elected to keep this information confidential prior to the commission's receipt of the request for information. 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,

Bob Davis

Assistant Attorney General

Open Records Division

RSD/eb

Ref: ID# 422718

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

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

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer