September 28, 2012

Ms. L. Carolyn Nivens

Paralegal

Ross, Banks, May, Cron, & Cavin, P.C.

2 Riverway, Suite 700

Houston, Texas 77056-1918

OR2012-15493

Dear Ms. Nivens:

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# 466288 (City Reference No. W001754-070312).

The Friendswood Police Department (the "department"), which you represent, received a request for employment and disciplinary information pertaining to four named officers. ⁽¹⁾ You state the department will redact information pursuant Open Records Decision No. 670 (2001), which is a previous determination by this office authorizing a governmental body to redact information subject to section 552.117(a)(2) of the Government Code. ⁽²⁾ You claim some of the submitted information is excepted from disclosure under sections 552.101, 552.102, 552.114, 552.115, 552.1175, 552.119, 552.122, 552.130, 552.136, and 552.140 ⁽³⁾ of the Government Code. ⁽⁴⁾ We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽⁵⁾

Initially, we note the requestor specifically excludes from his request social security numbers, drivers' license numbers, and home addresses. Thus, this information is not responsive to the present request. This ruling does not address the public availability of any information that is not responsive to the request, and the department is not required to release that information in response to the 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. Section 552.101 also encompasses section 411.083 of the Government Code which pertains to criminal history record information ("CHRI") generated by the National Crime Information Center or by the Texas Crime Information Center. Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI that state agencies obtain from the federal government or other states. See Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. See id. Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety ("DPS") maintains, except that DPS may disseminate this information in accordance with chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083. Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may only release CHRI to another criminal justice agency for a criminal justice purpose. See id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. §§ 411.090-.127. Furthermore, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. Upon review, we conclude that the department must withhold the CHRI we have marked under section 552.101 of the Government Code in conjunction with section 411.083 of the Government Code. ⁽⁶⁾ However, we find none of the remaining information constitutes CHRI for purposes of chapter 411, and the department may not withhold any of the remaining information under section 552.101 of the Government Code on that basis.

Section 552.101 of the Government Code also encompasses information protected by section 261.201 of the Family Code, which provides, in relevant part, as follows:

(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 this 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 this chapter 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 this chapter or in providing services as a result of an investigation.

Fam. Code § 261.201(a). Upon review, we find a portion of the submitted information, which we have marked, was used or developed in an investigation of alleged or suspected child abuse, so as to fall within the scope of section 261.201(a). See id. §§ 261.001 (defining "abuse" and "neglect" for purposes of chapter 261 of the Family Code), 101.003(a) (defining "child" for purposes of this section as person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes). Accordingly, we find this information is subject to chapter 261 of the Family Code. You do not indicate the department has adopted a rule that governs the release of this type of information. Therefore, we assume no such regulation exists. Given that assumption, we conclude the information we marked is confidential pursuant to section 261.201 of the Family Code, and the department must withhold it under section 552.101 of the Government Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute).

Section 552.101 encompasses the doctrine of common-law privacy, which protects information if it (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. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be established. Id. at 681-82. This office has found that personal financial information not relating to a financial transaction between an individual and a governmental body is generally intimate or embarrassing. See generally Open Records Decision Nos. 600 at 9-10 (1992) (employee's designation of retirement beneficiary, choice of insurance carrier, election of optional coverages, direct deposit authorization, forms allowing employee to allocate pretax compensation to group insurance, health care or dependent care), 545 (1990) (deferred compensation information, participation in voluntary investment program, election of optional insurance coverage, mortgage payments, assets, bills, and credit history). Furthermore, this office has noted the public has a legitimate interest in information that relates to public employees and their conduct in the workplace. See, e.g., Open Records Decision Nos. 562 at 10 (1990) (personnel file information does not involve most intimate aspects of human affairs but in fact touches on matters of legitimate public concern), 470 at 4 (1987) (job performance does not generally constitute public employee's private affairs), 444 at 3 (1986) (public has obvious interest in information concerning qualifications and performance of government employees), 405 at 2 (1983) (manner in which public employee's job was performed cannot be said to be of minimal public interest), 329 (1982) (reasons for employee's resignation ordinarily not private).

Upon review, we find the information we have marked is highly intimate or embarrassing and not of legitimate public concern. Therefore, the department must withhold the information we have marked pursuant to section 552.101 of the Government Code in conjunction with common-law privacy. However, we find no portion of the remaining information is highly intimate or embarrassing and of no legitimate public interest. Accordingly, no portion of the remaining information may be withheld under section 552.101 of the Government Code in conjunction with common-law 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). We understand you to assert the privacy analysis under section 552.102(a) is the same as the common-law privacy test under section 552.101 of the Government Code. See Indus. Found., 540 S.W.2d at 685. 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 Industrial Foundation privacy test. However, the Texas Supreme Court expressly disagreed with Hubert's interpretation of section 552.102(a) and held its privacy standard 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, and 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. See id. at 347-48. The department must withhold the dates of birth you have marked, in addition to the dates of birth we have marked, under section 552.102(a) of the Government Code. However, we find no portion of the remaining information at issue is subject to section 552.102(a), and the department may not withhold any of the remaining information on that basis.

Section 552.114(a) of the Government Code excepts from disclosure student records "at an educational institution funded wholly or partly by state revenue." Gov't Code § 552.114(a). This office has determined the same analysis applies under section 552.114 and the Family Educational Rights and Privacy Act of 1974 ("FERPA"), section 1232g of title 20 of the United States Code. FERPA governs the availability of student records held by educational institutions or agencies receiving federal funds. We note section 552.114 and FERPA apply only to student records in the custody of an educational institution and records directly transferred from an educational institution to a third party. See 34 C.F.R. § 99.33(a)(2). You contend some of the remaining information is confidential under section 552.114. However, the department is not an educational institution. See Open Records Decision No. 309 at 3 (1983) (City of Fort Worth not an "educational agency" for purposes of FERPA). Nor do you inform us, and it does not otherwise appear from our review, that the department received any of the information at issue directly from an educational institution. We therefore conclude the department may not withhold any of the information at issue on the basis of section 552.114 of the Government Code or FERPA.

As noted above, you state the department will redact information under section 552.117(a)(2) of the Government Code pursuant to the previous determination issued to all governmental bodies in Open Records Decision No. 670. However, you failed to mark portions of the submitted information that are subject to section 552.117(a)(2). Therefore, we will address the applicability of section 552.117 to the submitted information. Section 552.117(a)(2) excepts from disclosure the home address, home telephone number, emergency contact information, and social security number of a peace officer, as well as information that reveals whether the officer has family members, regardless of whether the officer complies with section 552.024 or section 552.1175 of the Government Code. Gov't Code § 552.117(a)(2). We note a post office box number is not a "home address" for purposes of section 552.117. ⁽⁷⁾ We also note section 552.117(a)(2) encompasses an employee's personal cellular telephone number if the employee pays for the cellular telephone service with his or her personal funds. See Open Records Decision No. 506 at 5-6 (1988) (statutory predecessor to Gov't Code § 552.117 not applicable to numbers for cellular mobile phones installed in county officials' and employees' private vehicles and intended for official business). Section 552.117(a)(2) adopts the definition of peace officer found at article 2.12 of the Code of Criminal Procedure. Accordingly, we conclude the department must withhold the information you have marked, in addition to the information we have marked, including the cellular telephone numbers if the officers paid for their cellular telephone service, under section 552.117(a)(2).

Section 552.1175 of the Government Code provides, in part, the following:

Information that relates to the home address, home telephone number, emergency contact information, or social security number of [a peace officer as defined by article 2.12 of the Code of Criminal Procedure], or that reveals whether the individual has family members is confidential and may not be disclosed to the public under this chapter if the individual to whom the information relates:

(1) chooses to restrict public access to the information; and

(2) notifies the governmental body of the individual's choice on a form provided by the governmental body, accompanied by evidence of the individual's status.

Gov't Code § 552.1175(b). The remaining information contains information pertaining to peace officers not employed by the department. Upon review, we find the department must withhold the information we have marked under section 552.1175 if the individuals to whom this information concerns elect to restrict access to their information in accordance with section 552.1175(b).

We understand you seek to withhold the submitted photograph of one of the named officers under section 552.119 of the Government Code, which provides as follows:

(a) A photograph that depicts a peace officer as defined by Article 2.12, Code of Criminal Procedure, the release of which would endanger the life or physical safety of the officer, is excepted from [required public disclosure] unless:

(1) the officer is under indictment or charged with an offense by information;

(2) the officer is a party in a civil service hearing or a case in arbitration; or

(3) the photograph is introduced as evidence in a judicial proceeding.

(b) A photograph excepted from disclosure under Subsection (a) may be made public only if the peace officer gives written consent to the disclosure.

Id. § 552.119. Under section 552.119, a governmental body must demonstrate, if the information does not demonstrate on its face, that release of the photograph would endanger the life or physical safety of a peace officer. You have made no arguments explaining how the release of the submitted photograph would endanger the life or physical safety of the officer. Accordingly, you have failed to demonstrate the applicability of section 552.119 to the information at issue. Therefore, the department may not withhold the submitted photograph under section 552.119 of the Government Code.

Section 552.122 of the Government Code excepts from disclosure "a test item developed by a . . . governmental body[.]" Id. § 552.122(b). In Open Records Decision No. 626 (1994), this office determined 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 at 6. The question of whether specific information falls within the scope of section 552.122(b) must be determined on a case-by-case basis. Id. 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.

The department seeks to withhold the submitted interview or test questions that qualify as "test items" under section 552.122 of the Government Code. Having reviewed the information at issue, we find the questions we have marked are test items under section 552.122(b) of the Government Code. We also find the answers would tend to reveal the questions. Therefore, the department may withhold the information we have marked under section 552.122 of the Government Code. However, we find none of the remaining information consists of "test items" for the purposes of section 552.122 and the department may not withhold the remaining information under section 552.122 of the Government Code.

Section 552.130 of the Government Code excepts from disclosure information that relates to a motor vehicle operator's or driver's license, title, or registration, issued by an agency of this state or another state or country. Gov't Code § 552.130(a)(1)-(2). Accordingly, the department must withhold the information marked under section 552.130 of the Government Code.

Section 552.136(b) of the Government Code provides, "[n]otwithstanding any other provision of [the Act], a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Id. § 552.136(b); see id. § 552.136(a) (defining "access device"). This office has concluded insurance policy numbers constitute access device numbers for purposes of section 552.136. Open Records Decision No. 684 at 9 (2009). Therefore, the department must withhold the insurance policy numbers you have marked under section 552.136 of the Government Code. However, you have not explained, and we cannot discern, how any of the remaining information consists of a credit card, debit card, or charge card number, or can be used to obtain money, goods, services, or another thing of value or initiate a transfer of funds. Thus, we find none of the remaining information may be withheld under section 552.136 of the Government Code.

Section 552.137 of the Government Code 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). ⁽⁸⁾ See Gov't Code § 552.137(a)-(c). We note that this exception is not applicable to an institutional e-mail address, an Internet website address, or an e-mail address that a governmental entity maintains for one of its officials or employees. You do not inform us the owner of the marked e-mail address has consented to the release of her information. Therefore, the department must withhold the marked e-mail address under section 552.137 of the Government Code, unless the owner affirmatively consents to its release.

Lastly, the department asserts sections 552.115 and 552.140 of the Government Code. However, the department did not submit birth or death records or a DD-214 form. Thus, the department may not withhold information under these exceptions. See id. §§ 552.115 (excepts birth or death records held either by the bureau of vital statistics of the Texas Department of Health or a local registration official), .140 (makes confidential DD-214 form under certain circumstances). The department also seeks to withhold medical records, L-2 and L-3 declarations, F-5 forms, and fingerprints. See Occ. Code §§ 151.001-168.202 (governing release of confidential medical records), 1701.306 (makes confidential L-2 Declarations of Medical Condition and L-3 Declarations of Psychological and Emotional Health required by the Texas Commission on Law Enforcement Officer Standards and Education), 1701.454 (makes confidential certain F-5 Report of Separation of License Holder forms); Gov't Code § 560.003 (provides "[a] biometric identifier in the possession of a governmental body is exempt from disclosure under [the Act]"). However, the department also did not submit any such information. Section 552.301(e)(1)(A) requires a governmental agency to submit the requested information or a representative sample of such information and the arguments for the information it seeks to withhold. Gov't Code § 552.301 (a)(1)(A). Thus, the department should only submit assertions for information that it actually submits to this office seeking to withhold. Accordingly, the department may not withhold any requested information under these provisions.

In summary, the department must withhold the CHRI we have marked under section 552.101 of the Government Code in conjunction with section 411.083 of the Government Code. The department must withhold the information we have marked under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. The department must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy. The department must withhold the dates of birth you have marked, in addition to the dates of birth we have marked, under section 552.102(a) of the Government Code. The department must withhold the information marked under section 552.117(a)(2) of the Government Code. The department must withhold the information marked under section 552.1175 of the Government Code if the individuals to whom this information concerns elect to restrict access to their information in accordance with section 552.1175(b). The department may withhold the information we have marked under section 552.122 of the Government Code. The department must withhold the information marked under sections 552.130 and 552.136, and the e-mail address we have marked under section 552.137 of the Government Code, unless the owner affirmatively consents to its release. The department must release the remaining responsive 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,

Paige Lay

Assistant Attorney General

Open Records Division

PL/tch

Ref: ID# 466288

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Footnotes

1. We note the department sought and received clarification of the request. 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. Open Records Decision No. 670 allows a governmental body to withhold home addresses and telephone numbers, personal cellular telephone numbers, personal pager numbers, social security numbers, and family member information of peace officers under section 552.117(a)(2) of the Government Code without the necessity of requesting an attorney general decision under section 552.301. ORD 670 at 6.

3. We note the department did not raise section 552.140 of the Government Code as an exception to disclosure within ten business days of the date the department received the request. See Gov't Code §§ 552.301(b), .302. However, because section 552.140 is a mandatory exception that can provide a compelling reason to withhold information from disclosure, we will address the applicability of this exception to the submitted information, notwithstanding the department's violation of section 552.301(b) in raising this exception. See id. § 552.302.

4. Although you raise section 552.101 of the Government Code in conjunction with section 552.119, we note section 552.101 does not encompass other exceptions found in the Act. See Open Records Decision No. 676 at 1-3 (2002). Additionally, while you also raise sections 552.023 and 552.024 of the Government Code, we note these sections are not exceptions to disclosure under the Act. See Gov't Code §§ 552.023, .024.

5. 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.

6. As our ruling is dispositive, we need not address your remaining argument against disclosure of this information.

7. See Open Records Decision No. 622 at 4 (1994) (legislative history makes clear that purpose of Gov't Code § 552.117 is to protect public employees from being harassed at home) (citing House Committee on State Affairs, Bill Analysis, H.B. 1976, 69th Leg. (1985); Senate Committee on State Affairs, Bill Analysis, H.B. 1976, 69th Leg. (1985)) (emphasis added).

8. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

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