August 7, 2012

Mr. Jason L. Mathis

City Attorney for the Town of Addison

Cowles & Thompson

901 Main Street, Suite 3900

Dallas, Texas 75202-3793

OR2012-12351

Dear Mr. Mathis:

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# 461417 (No. W002147).

The Town of Addison (the "town"), which you represent, received a request for termination agreements executed by two former town employees. You claim the requested information is excepted from disclosure under sections 552.102 and 552.103 of the Government Code. We have considered the exceptions you claim and reviewed the information you submitted. ⁽¹⁾

We first note the submitted information falls within the scope of section 552.022 of the Government Code. Section 552.022(a)(3) provides for required public disclosure of "information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[,]" unless the information is made confidential under the Act or other law. Gov't Code § 552.022(a)(3). In this instance, the submitted information consists of contracts relating to the town's expenditure of public or other funds. Although you seek to withhold the submitted information under section 552.103 of the Government Code, that section is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See id. § 552.007; Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.--Dallas 1999, no pet.) (Gov't Code § 552.103 may be waived); Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally). As such, section 552.103 does not make information confidential for purposes of section 552.022(a)(3) of the Government Code. Therefore, the town may not withhold any of the submitted information under section 552.103 of the Government Code. We note you also claim section 552.102(a) of the Government Code, which is a confidentiality provision for purposes of section 552.022(a)(3). Additionally, section 552.117 of the Government Code, which also is a confidentiality provision for purposes of section 552.022(a)(3), may be applicable in this instance. ⁽²⁾ Accordingly, we will address sections 552.102(a) and 552.117.

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). 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 Third Court of Appeals ruled the privacy test under section 552.102(a) is the same as the privacy test under section 552.101 of the Government Code in conjunction with Industrial Foundation v. Texas Industrial Accident Board. See 540 S.W.2d 668, 685 (Tex. 1976). The Texas Supreme Court expressly disagreed with Hubert's interpretation of section 552.102(a), however, and 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., 354 S.W.3d 336 (Tex. 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. See id. at 348. Therefore, because none of the submitted information falls within the scope of section 552.102(a) of the Government Code, the town may not withhold any of the information at issue under that exception.

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 timely requests confidentiality for the information under section 552.024 of the Government Code. See Gov't Code §§ 552.117(a)(1), .024. 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. We have marked information the town must withhold under section 552.117(a)(1) of the Government Code to the extent the former employees concerned timely requested confidentiality for the marked information under section 552.024 of the Government Code. To the extent the former employees did not timely request confidentiality under section 552.024, the marked information may not be withheld under section 552.117(a)(1) and must be released. In either event, the town must release the rest of the submitted information.

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/bhf

Ref: ID# 461417

Enc: Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. This letter ruling assumes the submitted representative sample of information is truly representative of the requested information as a whole. This ruling neither reaches nor authorizes the town to withhold any information that is substantially different from the submitted information. See Gov't Code §§ 552.301(e)(1)(D), .302; Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).

2. This office will raise section 552.117 on behalf of a governmental body, as this section is a mandatory exception to disclosure. See Gov't Code §§ 552.007, .352; Open Records Decision No. 674 at 3 n.4 (2001) (mandatory exceptions).

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