July 9, 2012

Ms. Jennafer G. Tallant

Denton, Navarro, Rocha & Bernal

2517 North Main Avenue

San Antonio, Texas 78212-4685

OR2012-10511

Dear Ms. Tallant:

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# 458273.

The City of Jourdanton (the "city"), which you represent, received a request for every employee listing for wages for each month from January 1, 2011 to the date of the request and any annual report, including the annual audit, related to the employee listing for wages. The city claims the submitted information is excepted from disclosure under sections 552.101 and 552.117 of the Government Code. We have considered the exceptions the city claims and reviewed the submitted representative sample of information. ⁽¹⁾

Initially, the city informs us exhibit D was the subject of a previous request for information, in response to which this office issued Open Records Letter No. 2012-05461 (2012). In that ruling, we determined the city must withhold the W-2 Audit Report under section 552.101 of the Government Code in conjunction with section 6103(a) of title 26 of the United States Code. The city informs us exhibit D is the W-2 Audit Report at issue in Open Records Letter No. 2012-05461. We have no indication there has been any change in the law, facts, or circumstances on which the previous ruling was based. Accordingly, we conclude the city may rely on Open Records Letter No. 2012-05461 as a previous determination and withhold exhibit D in accordance with that ruling. ⁽²⁾ See Open Records Decision No. 673 (2001) (so long as law, facts, and circumstances on which prior ruling was based have not changed, first type of previous determination exists where requested information is precisely same information as was addressed in prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure). We will address the city's arguments against release of exhibit C, which is not encompassed by Open Records Letter No. 2012-05461.

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 section 6103(a) of title 26 of the United States Code, which renders tax return information confidential. See Attorney General Opinion H-1274 (1978) (tax returns); Open Records Decision Nos. 600 (1992) (W-4 forms), 226 (1979) (W-2 forms). Section 6103(b) defines the term "return information" as:

a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, . . . or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary [of the Treasury] with respect to a return or with respect to the determination of the existence, or possible existence, of liability . . . for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense[.]

26 U.S.C. § 6103(b)(2)(A). Federal courts have construed the term "return information" expansively to include any information gathered by the Internal Revenue Service (the "IRS") regarding a taxpayer's liability under title 26 of the United States Code. See Chamberlain v. Kurtz, 589 F.2d 827, 840-41 (5th Cir. 1979); Mallas v. Kolak, 721 F. Supp. 748, 754 (M.D.N.C. 1989), aff'd in part, 993 F.2d 1111 (4th Cir. 1993). The city seeks to withhold marked portions of exhibit C under section 6103(a) of title 26 of the United States Code. The city states the marked information has been or will be submitted to the Internal Revenue Service for the purpose of determining the existence or extent of any tax liabilities. However, upon review, we find the city failed to demonstrate any portion of the Employee History Reports in exhibit C is subject to section 6103(a) of title 26 of the United States Code. Therefore, the city may not withhold any portion of exhibit C under section 552.101 of the Government Code in conjunction with section 6103(a) of title 26 of the United States Code.

Next, we note portions of exhibit C that pertain to certain deductions, which we have marked, are subject to section 552.117(a)(1) of the Government Code. 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. Gov't Code § 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). The city may withhold information under section 552.117(a)(1) only on behalf of a current or former official or employee who made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. Thus, if the employees at issue timely requested confidentiality under section 552.024, the city must withhold the information we have marked under section 552.117(a)(1). Conversely, if the employees did not make timely elections under section 552.024, the city may not withhold the marked information under section 552.117(a)(1).

In the event the employees did not make timely elections under section 552.024 of the Government Code to withhold this information, we will consider the city's assertion under common-law privacy in conjunction with section 552.101 for the information we marked and the rest of exhibit C. Section 552.101 also encompasses the doctrine of common-law privacy. Common-law privacy protects information that is (1) highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and (2) not of legitimate concern to the public. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be satisfied. Id. at 681-82. The common-law right to privacy encompasses personal financial information not relating to a financial transaction between an individual and a governmental body, see Open Records Decision Nos. 600 (1992), 545 (1990). This office has determined financial information that relates 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 (1992) (identifying public and private portions of certain state personnel records), 545 at 4 (1990) (financial information not excepted from public disclosure by common-law privacy generally includes 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). Thus, a public employee's allocation of part of the employee's salary to a voluntary investment program offered by the employer is a personal investment decision, and information about that decision is protected by common-law privacy. See, e.g., Open Records Decision Nos. 600 at 9-12 (1992) (participation in TexFlex), 545 at 3-5 (1990) (deferred compensation plan); see also Attorney General Opinion GA-0572 at 4 (2007) (public employee's net salary protected by common-law privacy, but gross salary is not). However, where a transaction is funded in part by a governmental body, it involves the employee in a transaction with the governmental body, and the basic facts about that transaction are not private. See id. at 9 (basic facts of group insurance provided by governmental body not protected by common-law privacy).

Therefore, the city may not withhold the deductions we marked if they were made pursuant to garnishment orders. However, if the deductions are voluntary choices by the employees, then they are private and the city must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy. We have marked additional personal financial information that does not relate to a financial transaction between an individual and a governmental body. Such information is highly intimate or embarrassing and of no legitimate public concern. Therefore, the city must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy. A portion of the information reflects an individual's participation in the Texas Municipal Retirement System (the "TMRS"). The city explains participation in the TMRS is mandatory for all city employees and both the employee and the city contribute to the TMRS. See Gov't Code §§ 855.401, .405 (providing for member and municipality contributions to the TMRS). Because the TMRS is financed in part with public funds, there is a legitimate public interest in an employee's participation in the program and such information is not private. See ORD 545 at 4.

In summary, the city may rely on Open Records Letter No. 2012-05461 as a previous determination and may withhold exhibit D in accordance with the ruling in Open Records Letter No. 2012-05461. If the employees at issue timely requested confidentiality under section 552.024, the city must withhold the information we have marked under section 552.117(a)(1). If the employees at issue did not timely request confidentiality under section 552.024, and to the extent the marked deductions were voluntary, the city must withhold them and the additional information we marked in exhibit C under section 552.101 in conjunction with common-law privacy. The city must release the remaining information in exhibit C.

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,

Yen-Ha Le

Assistant Attorney General

Open Records Division

YHL/bs

Ref: ID# 458273

Enc. Marked documents

c: Requestor

(w/o enclosures)

Footnotes

1. We assume 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.

2. As we are able to make this determination, we do not address the city's arguments against disclosure of exhibit D.

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