February 27, 2012

Mr. Hyattye O. Simmons

General Counsel

Dallas Area Rapid Transit

P.O. Box 660163

Dallas, Texas 75266-0163

OR2012-02893

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# 447288 (ORR 8700).

Dallas Area Rapid Transit ("DART") received a request for six categories of information pertaining to a named police officer. You state DART will release some information to the requestor upon her response to a cost estimate. You claim some of the remaining requested 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 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 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. ⁽²⁾ 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 ["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 Attachment B of your letter dated January 3, 2012 consists of the statement of joint objectives between DART and TSA regarding the National Explosives Detection Canine Team Program. You state these documents contain sensitive security information pertaining to DART's program and response requirements for explosive detection canine teams and includes training requirements and response procedures. You assert that if these documents were released, it would be detrimental to DART's security because it would allow terrorists to know where and when to attack using explosives. Based on the statutory and regulatory scheme described above, your representations, and our review of the information at issue, we conclude the decision to release or withhold the information at issue 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 the information at issue at this time under the Act and instead must refer the information to the TSA to make a determination concerning disclosure of the submitted information.

Section 552.101 of the Government Code also encompasses the common-law and constitutional rights of privacy. Common-law privacy 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. 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 elements of the test must be established. Id. at 681-82. The types of information considered intimate or embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. See id. at 683.

Constitutional privacy consists of two interrelated types of privacy: (1) the right to make certain kinds of decisions independently and (2) an individual's interest in avoiding disclosure of personal matters. See Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Open Records Decision Nos. 600 at 3-5 (1992), 478 at 4 (1987), 455 at 3-7 (1987). The first type protects an individual's autonomy within "zones of privacy" which include matters related to marriage, procreation, contraception, family relationships, and child rearing and education. ORD 455 at 4. The second type of constitutional privacy requires a balancing between the individual's privacy interests and the public's need to know information of public concern. Id. at 7. The scope of information protected is narrower than that under the common-law doctrine of privacy; constitutional privacy under section 552.101 is reserved for "the most intimate aspects of human affairs." Id. at 5 (quoting Ramie v. City of Hedwig Village, Tex., 765 F.2d 490 (5th Cir. 1985)).

In this instance, the requestor is the attorney for the officer named in the request. As her client's representative, the requestor has a right of access to any of her client's private information that would otherwise be excepted from public disclosure. ⁽³⁾ See Gov't Code § 552.023; Open Records Decision No. 481 at 4 (1987) (privacy theories not implicated when individual or his authorized representative requests information concerning the individual). Furthermore, we find DART has failed to demonstrate how any of the remaining information at issue is protected by common-law or constitutional privacy. Accordingly, DART may not withhold any of the remaining information at issue under section 552.101 in conjunction with common-law privacy or constitutional privacy.

Section 552.102(a) of the Government Code 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. & The Dallas Morning News, Ltd., 354 S.W.3d 336 (Tex. 2010). You claim section 552.102(a) for the named officer's birth date. However, as previously noted, the requestor has a right of access to her client's own personal information. See Gov't Code § 552.023(a); ORD 481 at 4. Accordingly, DART may not withhold the named officer's birth date under section 552.102(a).

Section 552.117(a)(2) of the Government Code excepts from public disclosure a peace officer's home address and telephone numbers, emergency contact information, social security number, and family member information regardless of whether the peace officer made an election under section 552.024 of the Government Code. Gov't Code § 552.117(a)(2). Section 552.117(a)(2) applies to peace officers as defined by article 2.12 of the Code of Criminal Procedure. We note that section 552.117 protects personal privacy, and, as previously noted, the requestor is the authorized representative of the officer named in the request. Therefore, the requestor has a right of access to her client's private information under section 552.023 of the Government Code. See id. § 552.023; ORD 481 at 4). However, DART must withhold the personal information of the peace officer we have marked in the remaining information at issue pursuant to section 552.117(a)(2) of the Government Code.

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. Whether information falls within the scope of section 552.122(b) must be determined on a case-by-case basis. Id. at 6. 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 inform us some of the remaining information at issue consists of DART Transit Police Department tests related to racial profiling, defensive tactics, post test grade crossing, collapsible batons, and oleoresin capsicum aerosol. Upon review, we conclude some of the information at issue consists of "test items" for purposes of section 552.122(b). Therefore, you may withhold these questions and their responses, which we have marked, under section 552.122(b). However, we conclude you have not established the remaining information at issue consists of test items for purposes of section 552.122(b). Therefore, you may not withhold the remaining information at issue under section 552.122.

In summary, DART may not release the information in Attachment B at this time under the Act, but instead must refer the information to the TSA to make a determination concerning disclosure of that information. DART must withhold the personal information of the peace officer we have marked in the remaining information at issue pursuant to section 552.117(a)(2) of the Government Code. DART may withhold the information we have marked under section 552.122(b) of the Government Code. DART must release the remaining information at issue. ⁽⁴⁾

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/eb

Ref: ID# 447288

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

3. Section 552.023 provides in part that "[a] person or a person's authorized representative has a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person's privacy interests." Gov't Code § 552.023(a).

4. We note the information being released contains confidential information to which the requestor has a right of access. See Gov't Code § 552.023(a); ORD 481 at 4. If DART receives another request for this information from a different requestor, then DART should again seek a decision from this office.

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