|Office of the Attorney General - State of Texas
February 1, 1999
Mr. J. Robert Giddings
Dear Mr. Giddings:
You ask whether certain information is subject to required public disclosure under the Texas Open Records Act, chapter 552 of the Government Code. Your request was assigned ID# 121740.
The University of Texas System (the "system") received a request for a copy of the transcript generated during the sexual harassment investigation of a specific faculty member. You indicate that a "transcript" of the inquiry does not exist. You have, however, submitted a memorandum which you believe is responsive to the request. You claim that the submitted document is excepted from disclosure under sections 552.101, 552.107, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted document.
You first assert that the submitted document may be withheld under section 552.111. Section 552.111 excepts "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." In Open Records Decision No. 615 (1993), this office reexamined the predecessor to the section 552.111 exception in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ), and held that section 552.111 excepts only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. An agency's policymaking functions, however, do not encompass internal administrative or personnel matters; disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. Open Records Decision No. 615 at 5-6 (1993). The submitted document merely involves internal administrative or personnel matters. Thus, the system may not withhold the memorandum under section 552.111.
You also contend that the submitted document is protected from disclosure by section 552.107. Section 552.107(1) excepts information that an attorney cannot disclose because of a duty to his client. In Open Records Decision No. 574 (1990), this office concluded that section 552.107 excepts from public disclosure only "privileged information," that is, information that reflects either confidential communications from the client to the attorney or the attorney's legal advice or opinions; it does not apply to all client information held by a governmental body's attorney. Id. at 5. When communications from attorney to client do not reveal the client's communications to the attorney, section 552.107 protects them only to the extent that such communications reveal the attorney's legal opinion or advice. Id. at 3. In addition, basically factual communications from attorney to client, or between attorneys representing the client, are not protected. Id. After careful review, we agree that a portion of the document contains attorney advice or opinion. We have marked the information that may be withheld under section 552.107.
Finally, you contend that the submitted document is excepted from disclosure by a right of privacy. Section 552.101 protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including the common-law right to privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Common-law privacy protects information if it is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and it is of no legitimate concern to the public. Id. at 683-85. Although information relating to an internal investigation of sexual harassment claims involving public employees may be highly intimate or embarrassing, the public generally has a legitimate interest in knowing the details of such an investigation. Open Records Decision No. 444 (1986).
In Morales v. Ellen, 840 S.W.2d 519, 525 (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 a summary of the board of inquiry that conducted the investigation. Id. The court ordered the release of the affidavit of the person under investigation and the summary of the investigation, stating that the public's interest was sufficiently served by the disclosure of these documents. Id. In concluding, the Ellen court held that "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. We have marked the information that is protected by the common-law right to privacy. The remaining information must be released in accordance with Ellen.(1)
We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied on as a previous determination regarding any other records. If you have any questions regarding this ruling, please contact our office.
Yours very truly,
June B. Harden
Ref.: ID# 121740
Enclosures: Submitted documents
cc: Ms. Lorna Fitzsimmons
1. Here, the requestor has a special right of access to information that relates to herself. Gov't
Code § 552.023. We caution, however, that some of the information may be confidential by law or
may implicate the privacy interest of a third party. Therefore, if the system receives a request in the
future, the system should seek a ruling from this office and reassert its privacy exception before
releasing any of the requested information. See Gov't Code § 552.352 (distribution of confidential
information may constitute criminal offense).
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US