September 2, 2011

Mr. Hyattye O. Simmons

General Counsel

Dallas Area Rapid Transit

P.O. Box 660163

Dallas, Texas 75266-0163

OR2011-12787

Dear Mr. Simmons:

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# 428752 (DART ORR No. 8307).

Dallas Area Rapid Transit ("DART") received a request for (1) DART emergency response plans for certain disasters and DART protocols for certain situations, (2) the personnel file for a specified individual, (3) transcripts from a train operator to train control during a specified time period, and (4) information concerning who was informed about a specified incident. You state you have released some of the requested information. You claim the submitted information is excepted from disclosure under sections 552.101, 552.102, and 552.122 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, you state DART requested clarification of the fourth category of requested information. See Gov't Code § 552.222 (providing if request for information is unclear, governmental body may ask requestor to clarify request); see also Open Records Decision No. 31 (1974) (when presented with broad requests for information rather than for specific records, governmental body may advise requestor of types of information available so request may be properly narrowed). You state DART has not received clarification of the portion of the request at issue. Thus, for the portion of the requested information for which you have not received clarification, we find DART is not required to release information in response to that portion of the request. However, if the requestor clarifies that portion of the request for information, DART must seek a ruling from this office before withholding any responsive information from the requestor. See City of Dallas v. Abbott, 304 S.W.3d 380, 387 (Tex. 2010) (holding that when a governmental entity, acting in good faith, requests clarification or narrowing of an unclear or overbroad request for public information, the ten-day period to request an attorney general ruling is measured from the date the request is clarified or narrowed).

Next, we note a portion of Attachment D is subject to section 552.022 of the Government Code, which provides in pertinent part:

(a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:

(1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108;

Gov't Code § 552.022(a)(1). Attachment D contains completed employment evaluations. Pursuant to section 552.022(a)(1) of the Government Code, a completed evaluation is expressly public unless it is either excepted under 552.108 of the Government Code or is expressly confidential under other law. Section 552.122 of the Government Code, which you claim for Attachment D, is a discretionary exception that protects a governmental body's interest and may be waived. See Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally), 663 at 5 (1999) (waiver of discretionary exceptions). As such, section  552.122 is not other law that makes information confidential for the purposes of section 552.022. Consequently, the completed evaluations, which we have marked, may not be withheld under section 552.122 of the Government Code. As you raise no further exceptions for the completed evaluations, they must be released. However, we will address section 552.122 for the information not subject to section 552.022 in Attachment D.

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 information protected by other statutes, including federal law. On November 25, 2002, the President signed the Homeland Security Act ("HSA"). The HSA created the Department of Homeland Security ("DHS") and transferred the Transportation Security Administration ("TSA"), a new agency created in the Department of Transportation ("DOT") the previous year to oversee the security of transportation, to DHS. See 6 U.S.C. §§ 111, 203.

In connection with the transfer of TSA to DHS, the HSA also transferred TSA's authority concerning sensitive security information ("SSI") under section 40119 of title 49 of the United States Code to section 114(r) of title 49 of the United States Code, and amended section 40119 to vest similar SSI authority in the Secretary of DOT. ⁽¹⁾ Section 114(r) of title 49 states:

(1) Notwithstanding [the Federal Freedom of Information Act (the "FOIA"),] the Under Secretary [for Transportation Security, head of TSA] shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security under authority of the Aviation and Transportation Security Act . . . if the Under Secretary decides disclosing the information would-

. . .

(C) be detrimental to the security of transportation.

49 U.S.C. § 114(r)(1)(c). This provision authorizes the Under Secretary to prescribe regulations that prohibit disclosure of information requested not only under the FOIA, but also under other disclosure statutes. Cf. Public Citizen, Inc. v. Federal Aviation Administration, 988 F.2d 186, 194 (D.C. Cir. 1993) (former section 40119 authorized Federal Aviation Administration Administrator to prescribe regulations prohibiting disclosure of information under other statutes as well as under FOIA). Thus, the Under Secretary is authorized by section 114(r) to prescribe regulations that prohibit disclosure of information requested under the Act.

Pursuant to the mandate and authority of section 114 of title 49, TSA published regulations in title 49 of the Code of Federal Regulations that took effect June 17, 2004. See 69 Fed. Reg. 28066. TSA subsequently published additional regulations regarding the security of passenger and freight rail services found in title 49 of the Code of Federal Regulations, which took effect December 26, 2008, with amendments taking effect on May 20, 2009. See 73 Fed. Reg. 77531; 74 Fed. Reg. 23656. Section 1520.1(a) of these regulations explains that the regulations govern the "maintenance, safeguarding, and disclosure of records and information that TSA has determined to be Sensitive Security Information ["SSI"], as defined in § 1520.5." 49 C.F.R. § 1520.1(a). Section 1520.7 states that the covered persons to which these regulations apply include, among others, rail transit systems subject to the requirements of part 1580 and "[e]ach person employed by, contracted to, or acting for a covered person[.]" See id. § 1520.7(k), (n). We note section 1580 states "Rail transit system or 'Rail Fixed Guideway System' means any light, heavy, or rapid rail system, monorail, inclined plane, funicular, cable car, trolley, or automated guideway that traditionally does not operate on track that is part of the general railroad system of transportation." Id. § 1580.3. Further, section 1520.7(j) specifies that these regulations apply to "[e]ach person who has access to SSI, as specified in § 1520.11." Id. § 1520.7(j). Pursuant to section 1520.11(a), a person has a need to know SSI "[w]hen the person requires access to specific SSI to carry out transportation security activities approved, accepted, funded, recommended, or directed by DHS or DOT." Id. § 1520.11(a). Section 1520.11(b) further states that a local government employee has a need to know SSI "if access to the information is necessary for performance of the employee's official duties on behalf or in defense of" the interests of the local government. Id. § 1520.11(b)(1). Thus, the regulations in title 49 of the Code of Federal Regulations apply to DART.

As to the release of information by persons other than TSA, section 1520.9(a) of title 49 provides in part that a person to which these regulations apply has a duty to protect information and may disclose SSI "only to covered persons who have a need to know, unless otherwise authorized in writing by TSA, the Coast Guard, or the Secretary of DOT." Id. § 1520.9(a)(2). Section 1520.9(a)(3) of title 49 further provides that those covered by the regulation must "[r]efer requests by other persons for SSI to TSA or the applicable component or agency within DOT or DHS." Id. § 1520.9(a)(3). SSI is defined to include certain information obtained or developed in the conduct of security activities, the disclosure of which TSA has determined would constitute an unwarranted invasion of privacy, reveal trade secrets or privileged or confidential information obtained from any person, or be detrimental to the security of transportation. Id. § 1520.5(a). SSI also includes "[a]ny security program or security contingency plan issued, established, required, received, or approved by DOT or DHS," "[s]pecific details of . . . rail transportation security measures, both operational and technical, whether applied directly by the Federal government or another person, including. . . [s]ecurity measures or protocols recommended by the Federal government," and "[a]ny information not otherwise described . . . that TSA determines is SSI under 49 U.S.C. 114(s) or that the Secretary of DOT determines is SSI under 49 U.S.C. 40119." Id. § 1520.5(b)(1), (8), (16).

You state Exhibit B consists of DART's System Security and Emergency Preparedness Plan, System Failure on Rail Operations Plan, and Emergency Operating Procedure for Rail Operations that constitute "security sensitive information" as defined by the TSA. You represent these documents are required for rail fixed guideway systems pursuant to part 659 of chapter 49 of the Code of Federal Regulations. Based on the statutory and regulatory scheme described above, your arguments, and our review, we conclude the decision to release or withhold the information in question is not for this office or DART to make, but rather is a decision for the Under Secretary as head of the TSA. See English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (state law is preempted to extent it actually conflicts with federal law). Therefore, DART may not release Exhibit B at this time under the Act, and instead must refer the information to the TSA to make a determination concerning disclosure of that information. As our ruling is dispositive, we need not address your remaining argument. ⁽²⁾

Section 552.101 of the Government Code also encompasses section 1324a of title 8 of the United States Code, which provides that an Employment Eligibility Verification Form I-9 and "any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter" and for enforcement of other federal statutes governing crime and criminal investigations. See 8 U.S.C. § 1324a(b)(5); see also 8 C.F.R. § 274a.2(b)(4). Accordingly, we conclude the I-9 form in Attachment C, which we have marked, is confidential for purposes of section 552.101 of the Government Code and may only be released in compliance with the federal laws and regulations governing the employment verification system. ⁽³⁾

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 met. Id. at 681-82. This office has found that personal financial information that does not relate to a financial transaction between an individual and a governmental body ordinarily satisfies the first requirement of the test for common-law privacy. For example, information related to an individual's mortgage payments, assets, bills, and credit history is generally protected by the common-law right to privacy. See Open Records Decision Nos. 545 (1990), 523 (1989); see also Open Records Decision No. 600 (1992) (employee's designation of retirement beneficiary, choice of insurance carrier, election of optional coverages, direct deposit authorization, forms allowing employee to allocate pre-tax compensation to group insurance, health care or dependent care). However, there is a legitimate public interest in the essential facts about a financial transaction between an individual and a governmental body. See Open Records Decision Nos. 600 at 9 (information revealing that employee participates in group insurance plan funded partly or wholly by governmental body is not excepted from disclosure), 545 at 4 (financial information pertaining to receipt of funds from governmental body or debts owed to governmental body not protected by common-law privacy); see also Gov't Code § 552.022(a)(2) (name, salary, and title of public employee are public information). Upon review, we find the personal financial information we have marked in the remaining information is highly intimate or embarrassing and not of legitimate public concern. Accordingly, DART must withhold the information we have marked under section 552.101 in conjunction with common-law privacy.

You claim portions of the remaining information are excepted from disclosure under section 552.102 of the Government Code. This section 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). We find none of the remaining information is excepted under section 552.102(a) of the Government Code.

We note that some of the remaining information may be subject to section 552.117 of the Government Code. ⁽⁴⁾ 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, 82nd Leg., R.S., S.B. 1638, § 2 (to be codified as an amendment to Gov't Code § 117.(a)). 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). DART may only withhold information under section 552.117(a)(1) if the individual concerned elected confidentiality under section 552.024 prior to the date on which the request for this information was made. Therefore, if the DART employee whose personal information is at issue timely elected to keep his personal information confidential, DART must withhold the information we have marked under section 552.117(a)(1) of the Government Code. If the employee did not timely elect to withhold his personal information, DART may not withhold the information at issue under section 552.117(a)(1). ⁽⁵⁾

Section 552.122 of the Government Code excepts from disclosure "a test item developed by a . . . governmental body[.]" Gov't Code § 552.122(b). In Open Records Decision No. 626 (1994), this office determined that the term "test item" in section 552.122 includes "any standard means by which an individual's or group's knowledge or ability in a particular area is evaluated," but does not encompass evaluations of an employee's overall job performance or suitability. ORD 626 at 6. The question of whether specific information falls within the scope of section 552.122(b) must be determined on a case-by-case basis. Id. Traditionally, this office has applied section 552.122 where release of "test items" might compromise the effectiveness of future examinations. Id. at 4-5; see also Open Records Decision No. 118 (1976). Section 552.122 also protects the answers to test questions when the answers might reveal the questions themselves. See Attorney General Opinion JM-640 at 3 (1987); ORD 626 at 8.

You seek to withhold the portions of Attachment D not subject to section 552.022(a)(1), which contain examination questions and possible answers to the questions, under section 552.122 of the Government Code. You state these questions evaluate DART light rail operators' knowledge and that release would be detrimental to future testing of DART light rail operators. Having considered your arguments and reviewed the information at issue, we conclude the examination questions and possible answers we have marked in Attachment D qualify as test items for the purposes of section 552.122(b). Accordingly, we conclude DART may withhold the marked information under section 552.122 of the Government Code. We find, however, the remaining information does not test any specific knowledge of an applicant. Accordingly, we determine the remaining items are not test items under section 552.122(b) of the Government Code and therefore may not be withheld on this basis.

In summary, DART may not release Exhibit B at this time under the Act, and instead must allow the TSA to make a determination concerning disclosure of the information at issue. DART may only release the submitted I-9 form, which we have marked, in compliance with the federal laws and regulations governing the employment verification system. DART must withhold the information we have marked under section 552.101 in conjunction with common-law privacy. To the extent the employee whose information is at issue timely elected to withhold his personal information, DART must withhold the information we have marked under section 552.117(a)(1) of the Government Code. DART may withhold the information we have marked under section 552.122 of the Government Code. 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,

Jonathan Miles

Assistant Attorney General

Open Records Division

JM/em

Ref: ID# 428752

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. This ruling does not construe the parallel federal statutes and regulations that apply to DOT.

2. As our ruling is dispositive, we need not address your remaining argument against disclosure of Exhibit B.

3. Open Records Decision No. 684 (2009) is a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including I-9 forms under section 552.101 in conjunction with section 1324(a) of title 8 of the United States Code, without the necessity of requesting an attorney general decision.

4. 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).

5. 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).

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