March 26, 2012

Mr. Gerard A. Calderon

Assistant Criminal District Attorney

Civil Section

Bexar County Criminal District Attorney's Office

300 Dolorosa, Fifth Floor

San Antonio, Texas 78205

OR2012-04400

Dear Mr. Calderon:

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# 448688.

The Bexar County District Attorney's Office (the "district attorney's office") received two requests from the same requestor for e-mails containing the phrase "Efforts to Outcomes" or "ETO" in the body or subject line of the e-mails sent from or received by a named individual's e-mail account from March 1, 2010 to the date of the request, training materials for workshops provided by the Bexar County Family Justice Center (the "FJC") or Texas Rio Grande Legal Aid ("TRLA") during three specified time frames regarding ETO, and procedures for TRLA referrals. ⁽¹⁾ You claim the submitted information is excepted from disclosure under sections 552.101, 552.138, and 552.139 of the Government Code. ⁽²⁾ We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽³⁾

Initially, we note a portion of the submitted information, which we have marked, consists of e-mails that do not contain the phrases "ETO" or "Efforts to Outcome" in the body or subject line of the e-mail, nor is it responsive to the remaining categories of the request. This decision does not address the public availability of non-responsive information and such information need not be released in response to the present request.

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. Section 261.201 of the Family Code provides in part:

(a) [T]he following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with [the Family Code] and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under [chapter 261 of the Family Code] and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under [chapter 261 of the Family Code] or in providing services as a result of an investigation.

Fam. Code § 261.201(a). In this instance, the information at issue does not contain a report of alleged or suspected child abuse or neglect made under chapter 261 of the Family Code, or the identity of a person making a report. Further, the information at issue was not used or developed in an investigation of alleged or suspected child abuse or neglect. Finally, you have not demonstrated it was used or developed in providing services as a result of an investigation of alleged or suspected child abuse or neglect. See id. § 261.201(a); see also id. § 261.001(1), (4) (defining "abuse" and "neglect" for purposes of Fam. Code ch. 261). Thus, we find you have failed to establish the applicability of section 261.201 to the information at issue. Consequently, the district attorney's office may not withhold any of the requested information under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code.

You raise section 552.138 as an exception to disclosure of information regarding current and former clients of the FJC. Section 552.138 provides in relevant part:

(a) In this section:

(1) "Family violence shelter center" has the meaning assigned by Section 51.002, Human Resources Code.

(2) "Sexual assault program" has the meaning assigned by Section 420.003.

(b) Information maintained by a family violence shelter center or sexual assault program is excepted from [required public disclosure] if it is information that relates to:

. . .

(3) the name, home address, home telephone number, or numeric identifier of a current or former client of a family violence shelter center or sexual assault program[.]

Gov't Code § 552.138(a), (b)(3). Section 51.002 of the Human Resources Code defines a family violence shelter center as a program "operated by a public or private nonprofit organization" that "provides comprehensive residential and nonresidential services to victims of family violence." See Hum. Res. Code § 51.002(5). You state the FJC consists of a multi-disciplinary team of professionals that provides coordinated services to victims of family violence. Upon review, we find the FJC is a family violence shelter center for purposes of section 552.138. Further, we note the information at issue consists of e-mails from the IT Systems program manager for the FJC and is therefore maintained by the FJC. Accordingly, the district attorney's office must withhold the names of current and former clients of the FJC, which we have marked, under section 552.138 of the Government Code.

Section 552.101 also encompasses the common-law right to privacy. Common-law privacy 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 also found some kinds of medical information or information indicating disabilities or specific illnesses are excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). Upon review, we find no portion of the remaining information is highly intimate or embarrassing and of no legitimate public concern. Accordingly, the district attorney's office may not withhold any of the remaining information on the basis of section 552.101 of the Government Code in conjunction with common-law privacy.

Section 552.139 provides in part:

(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.

(b) The following information is confidential:

(1) a computer network vulnerability report;

(2) any other assessment of the extent to which data processing operations, a computer, a computer program, network, system, or system interface, or software of a governmental body or of a contractor of a governmental body is vulnerable to unauthorized access or harm, including an assessment of the extent to which the governmental body's or contractor's electronically stored information containing sensitive or critical information is vulnerable to alteration, damage, erasure, or inappropriate use[.]

Gov't Code § 552.139. You state a portion of the information at issue relates to software issues and problems with the FJC client database and release of this information would place the entire database of victims at risk. However, upon review we find you have failed to demonstrate the information at issue relates to computer network security or the design, operation, or defense of a computer network, or consists of a computer network vulnerability report or assessment as contemplated by section 552.139. Accordingly, none of the remaining information may be withheld on the basis of section 552.139 of the Government Code.

Section 552.117 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. ⁽⁴⁾ Id. § 552.117(a)(1). 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). Therefore, the district attorney's office may only withhold information under section 552.117 on behalf of current or former officials or employees who made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. We note section 552.117 is also applicable to personal cellular telephone numbers, provided the cellular telephone service is not paid for by a governmental body. See Open Records Decision No. 506 at 5-6 (1988) (section 552.117 not applicable to cellular telephone numbers paid for by governmental body and intended for official use). The remaining information contains a cellular telephone number, which we have marked. To the extent the employee has timely elected to keep this information confidential and service for the cellular telephone is paid for with personal funds, the district attorney's office must withhold the information we have marked under section 552.117(a)(1) of the Government Code.

Section 552.137 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). Gov't Code § 552.137(a)-(c). The remaining information contains personal e-mail addresses. The district attorney's office must withhold the e-mail addresses we have marked under section 552.137 of the Government Code, unless the owners affirmatively consent to their public disclosure. ⁽⁵⁾

In summary, the district attorney's office must withhold the information we have marked under section 552.138 of the Government Code. The district attorney's office must withhold the information we have marked under section 552.117(a)(1) if the employee to whom the information relates timely elected to keep such information confidential and the cellular telephone service is paid for with personal funds. The district attorney's office must withhold the information we have marked under section 552.137 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,

Jessica Marsh

Assistant Attorney General

Open Records Division

JM/em

Ref: ID# 448688

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note the district attorney's office sought and received clarification from the requestor on January 3, 2012. See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information). See also City of Dallas v. Abbott, 304 S.W.3d 380 (Tex. 2010) (holding 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).

2. Although you also raise chapter 71 of the Family Code, you have not provided any arguments explaining how this chapter applies to the information at issue. Therefore, we assume you no longer assert chapter 71. See Gov't Code §§ 552.301, .302.

3. We assume that the "representative sample" of records 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 that those records contain substantially different types of information than that submitted to this office.

4. 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).

5. We note this office issued Open Records Decision No. 684 (2009), a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including e-mail addresses of members of the public under section 552.137 of the Government Code, 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
An Equal Employment Opportunity Employer