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John Cornyn

April 6, 1999

Ms. Lorna R. Jones
Assistant County Attorney
Harris County
1019 Congress, 15th Floor
Houston, Texas 77002-1700


Dear Ms. Jones:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID # 123257.

The Harris County Hospital District (the "district") received a request for the names and addresses of all retirees. The requestor also seeks the name and address of any surviving spouse who is receiving a pension benefit. You claim that the addresses of the retirees and the names and addresses of their surviving spouses are excepted from disclosure under sections 552.101 and 552.117 of the Government Code.

It does not appear that the district has sought an open records decision from this office within the statutory ten-day deadline. See Gov't Code 552.301. The district's delay in this matter results in the presumption that the requested information is public. See id. 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ). In order to overcome the presumption that the requested information is public, a governmental body must provide compelling reasons why the information should not be disclosed. Hancock, 797 S.W.2d at 381. A demonstration that the requested information is deemed confidential by law is sufficient to negate this presumption. See Open Records Decision No. 150 (1977).

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 also encompasses the doctrine of common-law privacy. The doctrine of 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 the public has no legitimate interest in it. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). This office has previously concluded that the names and home addresses of private citizens are not "intimate" information and, therefore, not protected under common-law privacy. See Open Records Decision Nos. 478 (1987), 455 (1987), 254 (1980) .

Section 552.101 also excepts from disclosure information protected by constitutional privacy. 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) 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 at 5 (1987) (citing Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985)). As noted above, the information you seek to withhold does not concern the intimate aspects of an individual's private affairs. Therefore, the requested information is not protected by constitutional privacy.

Finally, you argue that the requested information is excepted from public disclosure under section 552.117. Section 552.117 of the Government Code excepts from public disclosure information relating to the home address, home telephone number, and social security number of current or former government employees, officials and peace officers, as well as information revealing whether those employees, officials, or officers have family members. Section 552.117 requires you to withhold the home address of a retiree if the retiree requested that this information be kept confidential under section 552.024. See Open Records Decision Nos. 622 (1994), 455 (1987). You may not, however, withhold this information if the retiree made the request for confidentiality under section 552.024 after this request for information was made. Whether a particular piece of information is public must be determined at the time the request for it is made. Open Records Decision No. 530 at 5 (1989) (concluding that governmental body may solicit its employees' 552.117 preferences for future requests only). Furthermore, the district may not withhold the home address of a retiree who retired prior to the effective date of section 552.024. See Open Records Decision No. 488 (1988).

You seek to withhold the names and addresses of surviving spouses under section 552.117 as well. We have reviewed the submitted public information form and it does not appear that the district allows its employees to withhold family member information from disclosure. Consequently, the names and addresses of surviving spouses must be released to the requestor. But see Open Records Letter No. 97-0271 (1997) (concluding that except for provision relating to family member information, all section 552.117(1) protections lapse upon the death of employee).

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.


June B. Harden
Assistant Attorney General
Open Records Division


Ref: ID# 123257

Enclosures: Submitted documents

cc: Mr. Dwight Carmouche
AFSCME Retiree Program
P.O. Box 230242
Houston, Texas 77223-0242
(w/o enclosures)


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