July 17, 2012

Ms. Corra M. Dunigan

Assistant General Counsel

Texas Workforce Commission

101 East 15^th Street

Austin, Texas 78778-0001

OR2012-11062

Dear Ms. Dunigan:

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# 459270 (TWC Tracking# 120502-010).

The Texas Workforce Commission (the "commission") received a request for information pertaining to a specified claim of discrimination. You state the commission has withheld mediation and conciliation information under section 21.207(b) of the Labor Code pursuant to the previous determination issued to the commission in Open Records Letter No. 2009-10954 (2009). See Gov't Code § 552.301(a); Open Records Decision No. 673 at 7-8 (2001). You state the commission will withhold information pursuant to section 552.147 of the Government Code. ⁽¹⁾ You claim the submitted information is excepted from disclosure under sections 552.101 and 552.102 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽²⁾

Initially, we note some of the submitted information, which we have marked is not responsive because it was created after the date the commission received the instant request. The commission need not release non-responsive information in response to this request, and this ruling will not address that information.

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. Pursuant to section 21.204 of the Labor Code, the commission may investigate a complaint of an unlawful employment practice. See Labor Code § 21.204; see also id. §§ 21.0015 (powers of Commission on Human Rights under Labor Code chapter 21 transferred to commission's civil rights division), .201. Section 21.304 of the Labor Code provides "[a]n officer or employee of the commission may not disclose to the public information obtained by the commission under Section 21.204 except in compliance with Section 21.305 and as necessary to the conduct of a proceeding under this chapter." Id. § 21.304.

You indicate the information at issue pertains to a complaint of unlawful employment discrimination investigated by the commission under section 21.204 and on behalf of the Equal Employment Opportunity Commission. Thus, the information at issue is confidential under section 21.304 of the Labor Code. However, in this instance, the requestor is an attorney representing a party to the complaint. Section 21.305 of the Labor Code addresses the release of commission records to a party to a complaint filed under section 21.201 of the Labor Code and provides as follows:

(a) Except as provided by Subsection (c), the commission shall adopt rules allowing a party to a complaint filed under Section 21.201 reasonable access to commission records relating to the complaint.

(b) Except as provided by Subsection (c), unless the complaint is resolved through a voluntary settlement or conciliation, on the written request of a party the executive director shall allow the party access to the commission records:

(1) after the final action of the commission; or

(2) if a civil action relating to the complaint is filed in federal court alleging a violation of federal law.

Id. § 21.305(a)-(b). You inform us the commission has not taken final action on the complaint at issue. You further inform us the requestor did not provide any information indicating a civil action has been filed in federal court. Based on your representations and our review, we conclude the information at issue must be withheld from this requestor under section 552.101 of the Government Code in conjunction with section 21.304 of the Labor Code. ⁽³⁾

You ask this office to issue a previous determination allowing the commission to withhold, without seeking a ruling from this office, unlawful discrimination complaint records when the requestor is a party to the complaint if there has been no final action and no civil action relating to the complaint has been filed in federal court alleging a violation of federal law. See Gov't Code § 552.301(a) (allowing governmental body to withhold information subject to previous determination); see also ORD 673. We decline to issue such a previous determination at this time. Accordingly, this letter ruling is limited to the particular records 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 records 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/bhf

Ref: ID# 459270

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. 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. See Gov't Code § 552.147(b).

2. 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.

3. As our ruling is dispositive, we need not address your remaining argument against disclosure.

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