|Office of the Attorney General - State of Texas
November 23, 1999
Mr. Jacques I. Kiere
Dear Sheriff Kiere:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code, the Public Information Act (the "act"). Your request was assigned ID# 130969.
The Rockwall County Sheriff's Department (the "department") received a request from a former deputy for information relating to an internal affairs investigation regarding the requestor. You claim that the requested information is excepted from disclosure under sections 552.101, 552.103, 552.109, and 552.111 of the Government Code.
The information responsive to the request relates to accusations of sexual harassment against another sheriff's deputy. We believe that portions of the information at issue must be withheld in accordance with Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied). In Morales, the court addressed the applicability of the common-law privacy doctrine to files of an investigation of allegations of sexual harassment. Common-law privacy is an aspect of the section 552.101 exception to required disclosure in the act. 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 Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). However, the court ordered the release of the affidavit of the person under investigation, in part because it ruled that he had waived any privacy interest he may have had in the information by publishing a detailed letter explaining his actions and state of mind at the time of his forced resignation. Id. The Ellen court also ordered the disclosure of 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.
Here, we find no adequate summary of the investigation in the submitted materials. Therefore, we believe that, common-law privacy requires withholding only the identifying information about victims of the alleged sexual harassment and witnesses thereto. Please note, however, that identifying information about the requestor may not be withheld since the requestor has a special right of access to information which would be excepted from public disclosure only under laws which protect her own privacy. See Gov't Code § 552.023.
Section 552.103(a) excepts from required public disclosure information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party[.]
To secure the protection of section 552.103(a), a governmental body must demonstrate that the requested information relates to pending or reasonably anticipated litigation to which the governmental body is a party. Open Records Decision No. 588 (1991). The mere chance of litigation will not trigger section 552.103(a). Open Records Decision No. 452 (1986) and authorities cited therein. To demonstrate that litigation is reasonably anticipated, the governmental body must furnish concrete evidence that litigation involving a specific matter is realistically contemplated and is more than mere conjecture. Id.
Here, you advise that "the County Judge of Rockwall County has advised the Sheriff that he has been advised by a local law firm that there will be an EEOC complaint made against Captain Elliot as a result of this matter." Particularly as you have not indicated the interest of the referenced law firm in the matter, how it came to find out about the possible filing of an EEOC complaint, or in what capacity it advised the County Judge of the matter, we do not believe you have established the applicability of section 552.103(a) to the information at issue.
Section 552.109 excepts from disclosure "[p]rivate correspondence or communications of an elected office holder relating to matters the disclosure of which would constitute an invasion of privacy." Section 552.109 specifically protects the privacy of elected office holders; but, with respect to such office holders, it protects the same kind of information as does the common-law privacy aspect of section 552.101, addressed above. See, e.g.,Open Records Decisions Nos. 473 (1987), 506 (1988). Since we have already determined the extent to which the submitted information must be withheld under section 552.101, we need not separately address your section 552.109 claim.
Section 552.111 excepts interagency and intra-agency memoranda and letters, but only to the extent that they contain advice, opinion, or recommendation intended for use in the entity's policymaking process. Open Records Decision No. 615 (1993). The purpose of this section is "to protect from public disclosure advice and opinions on policy matters and to encourage frank and open discussion within the agency in connection with its decision-making processes." Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.--San Antonio 1982, writ ref'd n.r.e.) (emphasis added). In Open Records Decision No. 615, this office held that to come within the [section 552.111] exception, information must be related to the policymaking functions of the governmental body. An agency's policymaking functions do not encompass routine internal administrative and personnel matters . . . . [Emphasis in original.]
In our opinion, even assuming that some of it can be fairly characterized as interagency "memoranda or letters," the submitted information does not relate to policy matters such as to be within the scope of the section 552.111 exception.
We note, finally, that some of the submitted information appears to be subject to section 552.117. Sections 552.024 and 552.117(1) 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) at 5, 482 (1987), 455 (1987). Under section 552.117(2), such information, where it pertains to peace officers, must be withheld regardless of the officer's compliance with section 552.024. We note specifically that e-mail addresses contained in the submitted information, if they are home e-mail addresses, should be considered as subject to section 552.117 protection.
Except as noted above, you must release the submitted 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.
Ref: ID# 130969
Encl. Submitted documents
cc: Ms. Patricia J. Knight
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US