October 9, 2012

Ms. Tammye Curtis-Jones

Associate General Counsel

Texas Southern University

3100 Cleburne Avenue

Houston, Texas 77004

OR2012-16093

Dear Ms. Curtis-Jones:

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# 467663.

Texas Southern University (the "university") received a request from two requestors for certain settlement agreements during a specified time period. ⁽¹⁾ You state the university is releasing some information to the requestors. You claim the submitted information is excepted from disclosure under sections 552.101 and 552.103 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note the submitted information is subject to section 552.022 of the Government Code. Section 552.022 provides, in pertinent part, as follows:

(a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:

(18) a settlement agreement to which a governmental body is a party[.]

Gov't Code § 552.022(a)(18). The submitted information consists of settlement agreements to which the university is a party. Therefore, pursuant to section 552.022(a)(18), the university must release the submitted settlement agreements unless they are confidential under the Act or other law. You state the settlement agreement submitted as Exhibit 4 is excepted from disclosure under section 552.103 of the Government Code. However, section 552.103 is a discretionary exception and, therefore, does not make information confidential under the Act. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.--Dallas 1999, no pet.) (governmental body may waive section 552.103); see also Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally). Accordingly, the university may not withhold any of Exhibit 4 under section 552.103 of the Government Code. As you raise no other exceptions against disclosure of Exhibit 4, the university must release Exhibit 4. You raise section 552.101 of the Government Code for Exhibit 2. Because section 552.101 makes information confidential under the Act, we will address your claim under this section for Exhibit 2.

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 the doctrine of common-law privacy, which protects information that (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 (Tex. 1976). You contend Exhibit 2 is protected by common-law privacy. In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court addressed the applicability of the common-law privacy doctrine to files of an investigation of allegations of sexual harassment. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. Id. at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating the public's interest was sufficiently served by the disclosure of such documents. Id. In concluding, the Ellen court held "the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id. Thus, if there is an adequate summary of an investigation of alleged sexual harassment, the investigation summary must be released under Ellen, but the identities of the victims and witnesses of the alleged sexual harassment must be redacted, and their detailed statements must be withheld from disclosure. See Open Records Decision Nos. 393 (1983), 339 (1982).

In this instance, Exhibit 2 does not constitute an adequate summary of a sexual harassment investigation. Therefore, pursuant to section 552.101 of the Government Code and the ruling in Ellen, the information generally must be released, with the identities of the victims and witnesses redacted. See 840 S.W.2d at 525. Accordingly, the university must withhold the information identifying the victim we have marked under section 552.101 in conjunction with common-law privacy and the holding in Ellen. None of the remaining information in Exhibit 2 is highly intimate or embarrassing and of no legitimate public interest, and it may not be withheld under section 552.101 on the basis of common-law privacy.

We note a portion of the remaining information in Exhibit 2 is subject to section 552.102 of the Government Code. ⁽²⁾ Section 552.102(a) 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). The Texas 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 (Tex. 2010). Upon review, we find the university must withhold the date of birth we have marked under section 552.102(a) of the Government Code.

In summary, the university must withhold the information we have marked under section 552.101 of the Government Code in conjunction with common-law privacy and the holding in Ellen. The university must also withhold the date of birth we have marked under section 552.102(a) of the Government Code. The university must release the remaining 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,

Ana Carolina Vieira

Assistant Attorney General

Open Records Division

ACV/ag

Ref: ID# 467663

Enc. Submitted documents

c: Requestors

(w/o enclosures)

Footnotes

1. You state the university asked for and received clarification regarding this request. See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information).

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

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