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John Cornyn

August 12, 1999

Mr. Michael P. Fleming
County Attorney
Harris County
1019 Congress, 15th Floor
Houston, Texas 77002-1700


Dear Mr. Fleming:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 127703.

The Harris County Auditor's Office (the "office") received a request for "deferred compensation reports, monthly and bi-weekly, . . . for PEBSCO and VALIC participants." You claim that the requested information is excepted from disclosure under sections 552.101, 552.102(a), and 552.110 of the Government Code. We have considered the exceptions you claim and reviewed the submitted sample of information.(1)

Section 552.102 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). In Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd n.r.e.), the court ruled that the test to be applied to information claimed to be protected under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Foundation for information claimed to be protected under the doctrine of common-law privacy as incorporated by section 552.101 of the act. Therefore, we will first address whether section 552.101 applies to the information.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses common-law privacy and excepts from disclosure private facts about an individual. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Therefore, information may be withheld from the public when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. Id. at 685; Open Records Decision No. 611 at 1 (1992).

This office has previously found that the information requested is excepted from required public disclosure under common-law privacy. See Open Records Decision Nos. 600 (1992), 545 (1990). In Open Records Decision No. 545 (1990), this office determined that information regarding whether a public employee is participating in a voluntary deferred compensation program, whether or how much the employee is contributing to any specific vendor, and the employee's cumulative account balance with any specific vendor satisfied the requirements of both prongs of the common-law privacy test. We find that decision dispositive here. You explain that "Harris County employees become voluntary participants in the Program by first directly contacting the vendor(s) of their choice and establishing their respective accounts." Participation in the deferred compensation program is strictly voluntary. Therefore, we determine that you may withhold the requested information in its entirety.

Because section 552.101 of the Government Code is dispositive, we need not address your claims under section 552.110. 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.


Sue M. Lee
Assistant Attorney General
Open Records Division


Ref: ID# 127703

encl: Submitted documents

cc: Mr. Keith Kipp
2900 North Loop West, Suite 430
Houston, Texas 77092
(w/o enclosures)



1. In reaching our conclusion here, we assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

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