September 28, 2012

Mr. Isidro R. Alaniz

District Attorney

49th Judicial District

P.O. Box 1343

Laredo, Texas 78042-1343

OR2012-15524

Dear Mr. Alaniz:

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# 467221.

The 49th Judicial District Attorney's Office (the "district attorney's office") received a request for (1) the number of assistant district attorneys currently on staff; (2) the current starting salary range for assistant district attorneys; and (3) resumes or employment and education history of assistant district attorneys hired after January 1, 2010. You state you will release information responsive to items one and two of the request. You claim the submitted resumes are excepted from disclosure under sections 552.101, 552.102, 552.108, and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We have also received and considered comments submitted by a representative of the requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released).

Initially, we must address the procedural requirements under section 552.301 of the Government Code, which prescribes the procedures that a governmental body must follow in asking this office to decide whether requested information is excepted from public disclosure. Pursuant to section 552.301(b), a governmental body must ask for the attorney general's decision and state the exceptions that apply not later than the tenth business day after the date of receiving the request. Id. § 552.301(b). You state, and the request reflects, the district attorney's office received the request for information on July 16, 2012. Accordingly, the district attorney's office's ten day-business-day deadline was July 30, 2012. The district attorney's office requested a ruling from this office via a letter meter-marked July 31, 2012. See id. § 552.308 (describing rules for calculating submission dates of documents sent via first class United States mail, common or contract carrier, or interagency mail). Consequently, we find the district attorney's office failed to comply with the requirements of section 552.301.

Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with the requirements of section 552.301 results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See id. § 552.302; Simmons v. Kuzmich, 166 S.W.3d 342, 350 (Tex. App.--Fort Worth 2005, no pet.); Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ); Open Records Decision No. 630 (1994). Generally, a compelling reason to withhold information exists where some other source of law makes the information confidential or where third-party interests are at stake. Open Records Decision No. 150 at 2 (1977). Although you raise section 552.108 of the Government Code, this is a discretionary exception that protects only a governmental body's interests and may be waived. See Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions in general), 663 at 5 (1999) (waiver of discretionary exceptions), 177 at 3 (1977) (statutory predecessor to section 552.108 subject to waiver). As such, section 552.108 does not constitute a compelling reason to withhold information for purposes of section 552.302, and none of the submitted information may be withheld on that basis. However, because sections 552.101, 552.102, 552.117, and 552.137 can provide compelling reasons to withhold information, we will consider their applicability to the submitted information. ⁽¹⁾

Section 552.117(a)(1) excepts from disclosure the home addresses and telephone numbers, emergency contact information, social security number, and family member information of a current or former employee of a governmental body who requests this information be kept confidential under section 552.024 of the Government Code. Gov't Code § 552.117(a)(1). We note section 552.117 also encompasses a personal pager, fax, or cellular telephone number, if the individual personally pays for the service. See Open Records Decision No. 670 at 6 (2001); see also Open Records Decision No. 506 at 5-6 (1998) (statutory predecessor to section 552.117 not applicable to cellular telephone numbers provided and paid for by governmental body and intended for official use). We also note that an individual's personal post office box number is not a "home address" and therefore may not be withheld under section 552.117. See Gov't Code § 552.117; Open Records Decision No. 622 at 4 (1994) (legislative history makes clear that purpose of section 552.117 is to protect public employees from being harassed at home) (citing House Committee on State Affairs, Bill Analysis, H.B. 1979, 69th Leg. (1985)) (emphasis added). 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). Thus, information may only be withheld under section 552.117(a)(1) on behalf of a current or former 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. Thus, to the extent the individuals concerned timely requested confidentiality under section 552.024 for the information we have marked under section 552.117, including the fax number if the individual pays for the number with his personal funds, the information must be withheld under section 552.117(a)(1). ⁽²⁾ The information at issue may not be withheld under section 552.117(a)(1) to the extent confidentiality was not timely requested.

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 owner of the e-mail address consents to its release or the e-mail address falls within the scope of section 552.137(c). See Gov't Code § 552.137(a)-(c). The e-mail addresses at issue do not appear to be of a type specifically excluded by section 552.137(c). You do not inform us a member of the public has affirmatively consented to the release of any e-mail address contained in the submitted materials. Therefore, the district attorney's office must withhold the e-mail addresses we have marked under section 552.137 of the Government Code. ⁽³⁾

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. Section 552.101 encompasses section 418.176 of the Texas Homeland Security Act (the "HSA"), chapter 418 of the Government Code. Section 418.176 provides in relevant part as follows:

(a) Information is confidential if the information is collected, assembled, or maintained by or for a governmental entity for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity and:

(1) relates to staffing requirements of an emergency response provider, including a law enforcement agency, a fire-fighting agency, or an emergency services agency [or]

(2) relates to a tactical plan of the provider[.]

Id. § 418.176(a)(1), (2). The fact that information may generally be related to emergency preparedness does not make the information per se confidential under the provisions of the HSA. See Open Records Decision No. 649 at 3 (1996) (language of confidentiality provisions controls scope of its protection). As with any confidentiality statute, a governmental body asserting this section must adequately explain how the responsive information falls within the scope of the provision. See Gov't Code § 552.301(e)(1)(A) (governmental body must explain how claimed exception to disclosure applies).

Upon review, we find the district attorney's office has failed to adequately explain how the information at issue is collected or maintained for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity. Further, the district attorney's office has failed to explain how the information at issue relates to staffing requirements or tactical plans of an emergency response provider. Accordingly, the district attorney's office may not withhold the remaining information under section 552.101 in conjunction with section 418.176 of the Government Code.

Section 552.101 of the Government Code also encompasses the common-law right to 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 met. Id. at 681-82. The types of information considered intimate or embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. Upon review, we find none of the remaining information is highly intimate or embarrassing. Therefore, none of the remaining information is confidential under common-law privacy, and the district attorney's office may not withhold it under section 552.101 on that ground.

We also understand you to argue the information at issue is excepted from required disclosure under section 552.101 of the Government Code in conjunction with the common-law physical safety exception. In Cox, the court recognized, for the first time, a separate common-law physical safety exception to required disclosure that exists independent of the common-law right to privacy. Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers, LLC, 343 S.W.3d 112, 118 (Tex. 2011). Pursuant to this common-law physical safety exception, "information may be withheld [from public release] if disclosure would create a substantial threat of physical harm." Id. In applying this new standard, the court noted "deference must be afforded" law enforcement experts regarding the probability of harm, but further cautioned, "vague assertions of risk will not carry the day." Id. at 119. You argue the information at issue should not be released because release of the information could potentially make the individuals at issue subject to physical harm. Upon review, however, we conclude you have not demonstrated that release of the information would subject any district attorney's office employee to a specific risk of harm. Accordingly, the district attorney's office may not withhold any of the remaining information under section 552.101 of the Government Code in conjunction with the common-law physical safety exception.

You claim some of the remaining information is excepted from disclosure under section 552.102 of the Government Code. Section 552.102 excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwanted invasion of personal privacy." Gov't Code § 552.102(a). The supreme court 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. Tex. Comptroller of Pub. Accounts v. Attorney Gen. of Tex., 354 S.W.3d 336, 346 (Tex. 2010). Upon review, we find no portion of the remaining information is excepted under section 552.102(a). Accordingly, the district attorney's office may not withhold any of the remaining information on that basis.

In summary, to the extent the individuals concerned timely requested confidentiality under section 552.024 for the information we have marked under section 552.117, including the fax number if the individual pays for the number with his personal funds, the information must be withheld under section 552.117(a)(1) of the Government Code. The district attorney's office must withhold the e-mail addresses we have marked under section 552.137 of the Government Code. ⁽⁴⁾ 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,

Paige Lay

Assistant Attorney General

Open Records Division

PL/tch

Ref: ID# 467221

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

Ms. Heather L. Dietrick

Counsel for the Laredo Morning Times

Hearst Corporation

300 West 57^th Street

New York, New York 10019-3792

(w/o enclosures)

Footnotes

1. This office will raise section 552.137 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).

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

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

4. We note this office issued Open Records Decision No. 684 (2009), which serves as a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including an e-mail address of a member of the public under section 552.137 of the Government Code, without the necessity of requesting an attorney general decision.

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