|Office of the Attorney General - State of Texas
November 16, 1999
Mr. John Steiner
Dear Mr. Steiner:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 128569.
The City of Austin (the "city") received a request for a copy of the notes and final report of a sexual harassment investigation conducted by an attorney retained by the city. The city has supplied responsive information consisting of a full report and a report summary. The report summary is a synopsis of the facts discovered in the investigation. The full report consists primarily of transcribed responses of interviewed witnesses, including those of the purported victim and the accused; a statement of the purported victim; a statement and a memorandum prepared by the accused; documents from the personnel file of the accused; and portions of city personnel policies. You claim that the requested information is excepted from disclosure under sections 552.101, 552.107, and 552.111 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted information.
You contend that all of the subject information is excepted by section 552.107 of the Government Code. Section 552.107(1) excepts information from disclosure if it is information that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Civil Evidence, the Texas Rules of Criminal Evidence, or the Texas Disciplinary Rules of Professional Conduct. You relate that the city retained an attorney to investigate the subject allegations, and that the submitted materials were produced by that attorney. The city, in this instance, is therefore the client and the investigating attorney represents the city. The investigating attorney does not represent the employees who are the subjects of his investigation. You correctly note that this office has held certain communications from a client to an attorney to be confidential. However, the communications at issue here are communications from the attorney to the client. Such communications are excepted from public disclosure only to the degree that they reveal client confidences, or the attorney's opinion or advice. Open Records Decision No. 574 at 6 (1990). Information gathered by an attorney as a fact-finder, purely factual information, and the factual recounting of events including the documentation of calls made, meetings attended, and memoranda sent, are not excepted from disclosure by section 552.107(1). Id. In this case, we are of the opinion that all of the submitted information was gathered by this attorney acting as a fact-finder. The information is therefore not excepted from public disclosure by section 552.107(1) of the Government Code. See also Gov't Code § 552.022(a)(1).
You contend that a portion of the responsive information is excepted as attorney work product under section 552.111 of the Government Code. A governmental body may withhold attorney work product from disclosure under section 552.111 if it demonstrates that the material was 1) created for trial or in anticipation of civil litigation, and 2) consists of or tends to reveal an attorney's mental processes, conclusions and legal theories. Open Records Decision No. 647 (1996). To satisfy the first prong of the work product test a governmental body must demonstrate that 1) a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue, and 2) the party resisting discovery or release believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation. Open Records Decision No. 647 at 4 (1996). You relate that the information was prepared "with an eye toward possible litigation" and that "a complaint regarding sexual harassment causes any prudent counsel to prepare his or her client for the possibility of litigation." You allege no further facts in support of a finding that litigation was reasonably anticipated. Your argument acknowledges that litigation was only a "possibility." While arguably you have demonstrated that you believed in good faith that there was a substantial chance that litigation would ensue, you have not shown that a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue. We conclude that none of the responsive information is excepted as work-product under section 552.111 of the government Code.
A portion of the information is confidential under the test established by Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Government Code section 552.101 excepts from required public disclosure information that is considered confidential by law, either constitutional, statutory, or by judicial decision. The Industrial Foundation decision holds that information is protected by a common-law right of privacy if (1) the information contains highly intimate or embarrassing facts about a person's private affairs such that release of the information would be highly objectionable to a reasonable person, and (2) the information is of no legitimate concern to the public. The court addressed the applicability of this common-law privacy doctrine to files of an investigation of allegations of sexual harassment in Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied). 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. Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the public's interest was sufficiently served by the disclosure of such 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. Based on Ellen we have held that a governmental body must withhold the identities of alleged victims and witnesses to alleged sexual harassment as well as any information which would tend to identify a witness or victim. Open Records Decision Nos. 393 (1983), 339 (1982).
We are of the opinion that the summary report is analogous to the summary released in Ellen, and that release of this information satisfies the legitimate public interest in this matter. Further, the identities of witnesses, other than the accused, is protected by the common-law right of privacy and must be redacted from the released version of this summary. However, as the common-law right of privacy does not protect facts about a public employee's alleged misconduct on the job or complaints made about his performance, the identity of the accused is not protected. See Open Records Decision Nos. 438 (1986), 230 (1979), 219 (1978). As regards information contained in the full report, we find that the statements (including interview responses) and identities of the purported victim and all witnesses other than the accused, are protected and must not be released. The statements (including interview responses and memoranda) and identity of the accused must be released, as must the personnel policy statements and the personnel records of the accused. Note that non-confidential public employee personnel information may not be withheld. Open Records Decision No. 342 (1982). However, some of this information may be subject to section 552.117 of the Government Code. This section excepts from required public disclosure, the home addresses, home telephone numbers, social security numbers, or personal family members information of public employees who request that this information be kept confidential under section 552.024, and peace officers, irrespective of their election under section 552.024. This section requires you to withhold this information if a current or former employee or official 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 of a current or former employee, other than a peace officer, who 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).
Recapping: the summary report must be released with victim and witness identities redacted. The statements (including interview responses) and identities of the purported victim and all witnesses other than the accused must be withheld from the full report and the remainder released. Personnel records of the accused must be examined to determine the application of Government Code section 552.117. We have marked portions of the information as an example of identifying information.
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.
Michael Jay Burns
Ref: ID# 128569
Encl. Submitted documents
cc: Ms. Minette Mascorro
1. The city has also identified portions of the responsive information it contends are excepted from public disclosure by section 552.103 of the Government Code. However, the city did not timely raise this exception or provide comments showing how the exception applies. Therefore we do not address this exception.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US