January 25, 2012

Mr. Charles E. Zech

Ms. Clarissa M. Rodriguez

Denton, Navarro, Rocha & Bernal

2517 North Main Avenue

San Antonio, Texas 78212-4685

OR2012-01240

Dear Mr. Zech and Ms. Rodriguez:

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# 443821.

The City of Shavano Park (the "city"), which you represent, received two requests from the same requestor for information regarding a named city employee, including (1) records of complaints, claims, demands, lawsuits, and settlement agreements involving the employee and another named individual and (2) personnel files pertaining to the employee. You state some of the information encompassed by the second request has been released. You claim other information responsive to the second request is excepted from disclosure under sections 552.101, 552.102, 552.117, and 552.136 of the Government Code. We have considered the exceptions you claim and reviewed the information you submitted.

We first note you have submitted no records of complaints, claims, demands, lawsuits, or settlement agreements involving the named employee and the other named individual. We therefore assume the city has released any information responsive to that request that existed on the date of the city's receipt of the request. If not, then the city must release any such information immediately. ⁽¹⁾ See Gov't Code §§ 552.221, .301, .302; Open Records Decision No. 664 (2000).

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. Federal tax return information is confidential section 6103 of title 26 of the United States Code. For purposes of section 6103, "return information" includes "the nature, source, or amount of income" of a taxpayer. See 26 U.S.C. § 6103(b)(2); see also Attorney General Opinion H-1274 (1978) (tax returns); Open Records Decision Nos. 600 (1992) (W-4 forms), 226 (1979) (W-2 forms). We have marked W-2 and W-4 forms the city must withhold under section 552.101 of the Government Code in conjunction with section 6103 of title 26 of the United States Code.

Section 552.101 of the Government Code also 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). Common-law privacy encompasses the specific types of information held to be intimate or embarrassing in Industrial Foundation. See id. at 683 (information relating to sexual assault, pregnancy, mental or physical abuse in workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs). This office has concluded certain other types of information also are private under section 552.101. See generally Open Records Decision No. 659 at 4-5 (1999) (summarizing information attorney general has held to be private). We also have determined 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. 600 at 9-12 (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), 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); see also Attorney General Opinion GA-0572 at 3-5 (2007) (public employee's net salary protected by common-law privacy because it involves disclosure of personal financial information). We conclude the medical and personal financial information we have marked in the submitted documents is highly intimate or embarrassing and not a matter of legitimate public interest. Therefore, the city must withhold the marked information under section 552.101 of the Government Code in conjunction with common-law privacy. ⁽²⁾

You also claim section 552.102 of the Government Code, which 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). In Hubert v. Harte-Hanks Texas Newspapers, Inc., 652 S.W.2d 546, 549-51 (Tex. App.--Austin 1983, writ ref'd n.r.e.), the court of appeals ruled the privacy test under section 552.102(a) is the same as the Industrial Foundation privacy test. The Texas Supreme Court has expressly disagreed with Hubert's interpretation of section 552.102(a), however, and has held the privacy standard under section 552.102(a) differs from the Industrial Foundation test under section 552.101. See Tex. Comptroller of Pub. Accounts v. Attorney Gen. of Tex., No. 08-0172, 2010 WL 4910163 at *5 (Tex. Dec. 3, 2010). The Supreme Court then considered the applicability of section 552.102(a) and held it excepts from disclosure the dates of birth of state employees in the payroll database of the Texas Comptroller of Public Accounts. Id. at *10. The remaining information at issue does not include a birth date that may be withheld under section 552.102(a) of the Government Code.

Section 552.117(a)(1) of the Government Code excepts from disclosure the home address and telephone number, emergency contact information, social security number, and family member information of a current or former official or employee of a governmental body who requests this information be kept confidential under section 552.024 of the Government Code. See Gov't Code §§ 552.117(a)(1), .024. We note section 552.117(a)(1) encompasses an official's or employee's personal cellular telephone or pager number if the official or employee pays for the telephone or pager service with his or her personal funds. See Open Records Decision No. 506 at 5-6 (1988) (statutory predecessor to Gov't Code § 552.117 not applicable to numbers for cellular mobile phones installed in county officials' and employees' private vehicles and intended for official business). 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). Information may only be withheld under section 552.117(a)(1) on behalf of a current or former official or 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. Information may not be withheld under section 552.117(a)(1) on behalf of a current or former official or employee who did not timely request confidentiality under section 552.024. You have submitted documentation demonstrating the named employee timely requested confidentiality under section 552.024 of the Government Code for the submitted information that falls within the scope of section 552.117 of the Government Code. Therefore, the city must withhold that information, which we have marked, under section 552.117(a)(1), including the employee's cellular telephone number if he pays for the cellular service with his personal funds.

In summary, the city must withhold (1) the marked W-2 and W-4 forms under section 552.101 of the Government Code in conjunction with section 6103 of title 26 of the United States Code; (2) the marked medical and personal financial information under section 552.101 in conjunction with common-law privacy; and (3) the information we have marked under section 552.117(a)(1) of the Government Code. The rest of the 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,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/em

Ref: ID# 443821

Enc: Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note the Act does not require a governmental body to release information that did not exist when it received a request or create responsive information. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 555 at 1 (1990), 452 at 3 (1986), 362 at 2 (1983).

2. As we are able to make this determination, we need not address your claim under section 552.136 of the Government Code.

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