|Office of the Attorney General - State of Texas
April 1, 1999
Mr. Frank M. Crull
Dear Mr. Crull:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 123244.
The Department of Public Safety ("DPS") received a request for "a copy of the sexual harassment complaint currently filed against a DPS employee by another department employee." The requestor asked to "[p]lease exclude the victim and witness names but include the employee who the complaint was filed against." You have submitted "a copy of the investigation" relating to the requested complaint. We understand you to seek to withhold, under sections 552.101 and 552.102 of the Government Code, only the name of the employee whom the complaint was filed against.
Section 552.101 requires withholding "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information coming within common-law and constitutional privacy protections. Industrial Found. of the South 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.
The constitutional right to privacy consists of two related interests: 1) the individual interest in independence in making certain kinds of important decisions, and 2) the individual interest in independence in avoiding disclosure of personal matters. The first interest applies to the traditional "zones of privacy" described by the United States Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), and Paul v. Davis, 424 U.S. 693 (1976). These "zones" include matters related to marriage, procreation, contraception, family relationships, child rearing and education and are clearly inapplicable here.
The second interest, in nondisclosure or confidentiality, may be somewhat broader than the first. Unlike the test for common-law privacy, the test for constitutional privacy involves a balancing of the individual's privacy interests against the public's need to know information of public concern. Although such a test might appear more protective of privacy interests than the common-law test, the scope of information considered private under the constitutional doctrine is far narrower than that under the common law; the material must concern the "most intimate aspects of human affairs." See Open Records Decision No. 455 (1987) (citing Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985)).
Section 552.102(a) protects
information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, except that all information in the personnel file of an employee of a governmental body is to be made available to that employee or the employee's designated representative as public information is made available under this chapter.
Section 552.102(a) is designed to protect public employees' personal privacy. The scope of section 552.102(a) protection, however, is very narrow. See Open Records Decision No. 336 (1982). See also Attorney General Opinion JM-36 (1983). The test for section 552.102(a) protection is the same as that for information protected by common-law privacy under section 552.101: the information must contain highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and the information must be of no legitimate concern to the public. Hubert v. Harte-Hanks Texas Newspapers, Inc., 652 S.W.2d 546, 550 (Tex. App.--Austin 1983, writ ref'd n.r.e.).
In our opinion none of the submitted information is protected by constitutional privacy. However, we believe that the release of the submitted information, considered under either section 552.101 or section 552.102, is governed by Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied). There, the court addressed the applicability of the common-law privacy doctrine to files of an investigation of allegations of sexual harassment. The investigatory files at issue in Ellen contained individual witness and victim statements, an affidavit given by the individual accused of the misconduct in response to the allegations, and the conclusions of the board of inquiry that conducted the investigation. Id.
The court held that the names of witnesses and their detailed affidavits regarding allegations of sexual harassment was exactly the kind of information specifically excluded from disclosure under the privacy doctrine as described in Industrial Foundation. Id. at 525. However, the court ordered the release of the affidavit of the person under investigation and the summary of the investigation with the identities of the victims and witnesses deleted from the documents, noting that the public interest in the matter was sufficiently served by disclosure of such documents and that in that particular instance "the public [did] not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements." Id. at 525.
We conclude here that, pursuant to Ellen, the DPS must release the affidavit of the person under investigation and the summary of the investigation contained in the submitted materials. In accordance with Ellen, victims' and witnesses' identities must be redacted from the affidavit and summary.
The court in Ellen did not reach the issue of whether the public employee who was accused of the harassment had any inherent right of privacy to his identity or the content of his statement and we decline to extend such protection to the such individual here. We note that sexual harassment by public employees may constitute official oppression punishable as a Class A misdemeanor. See Bryson v. State, 807 S.W.2d 742 (Tex. Crim. App. 1991). We believe there is a legitimate public interest in the identity of public employees accused of sexual harassment in the workplace. See, e.g., Open Records Decision Nos. 484 (1987), 400 (1983). Therefore, the accused individual's identity may not be withheld from the materials we have ordered released.
We note that the summary we have ordered released contains information made confidential by statute. Section 19A of article 4413(29cc), V.T.C.S., which governs the release of polygraph examinations, reads in pertinent part:
(c) A licensed polygraph examiner, licensed trainee, or employee of a licensed polygraph examiner may disclose information acquired from a polygraph examination to:
(1) the examinee or any other person specifically designated in writing by the examinee;
(2) the person . . . or governmental agency that requested the examination;
(3) members or their agents of governmental agencies such as federal, state, county, or municipal agencies that license, supervise, or control the activities of polygraph examiners;
(4) other polygraph examiners in private consultation, all of whom will adhere to this section; or
(5) others as may be required by due process of law.
(d) A person for whom a polygraph examination is conducted or an employee of the person may disclose information acquired from the examination to a person described by Subdivisions (1) through (5) of Subsection (c) of this section.
(e) The board or any other governmental agency that acquires information from a polygraph examination under Subdivision (3) of Subsection (c) of this section shall keep the information confidential.
We have marked the portions of the summary which must be withheld under these provisions.
We note too that some of the information in the affidavit and summary we have ordered disclosed may implicate sections 552.024 and 552.117 of the Government Code. Sections 552.024 and 552.117 provide that a public employee or official can opt to keep private his or her home address, home telephone number, social security number, or information that reveals that the individual has family members. You must withhold this information if, as of the time of the request for the information, the employee had elected to keep the information private. Open Records Decision Nos. 530 (1989), 482 (1987), 455 (1987).
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 upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.
Ref:: ID# 123244
Enclosures: Marked documents
cc: Mr. Brian Collister
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US