|Office of the Attorney General - State of Texas
January 31, 2000
Ms. Nancy H. Reyes
Dear Ms. Reyes:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131169.
The San Antonio Housing Authority (the "authority"), which you represent, received a request for seventeen categories of information. You claim that specified portions of the requested information are excepted from disclosure under sections 552.101, 552.102, 552.103, and 552.104.(1) The authority also asserts that the request is overly broad and ambiguous and that it has sought, without success, clarification from the requestor. See Open Records Decision No. 663 (1999); Gov't Code § 552.222. You have provided a representative sample of the information you seek to withhold.(2) You have labeled the submitted information as exhibits 18 - 39. You contend that this information is excepted from public disclosure by sections 552.103, 552.104, and 552.107 of the Government Code. We have considered the exceptions you claim and reviewed the submitted exhibits.
Government Code section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information made confidential by statute. Title 28, Part 20 of the Code of Federal Regulations governs the release of criminal history record information ("CHRI") which states obtain from the federal government or other states. Open Records Decision No. 565 (1990). Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety (the "DPS") maintains. Sections 411.083(b)(1) and 411.089(a) authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release the information except to another criminal justice agency for a criminal justice purpose, id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release the information except as provided by chapter 411. In this case, none of the release provisions apply to the requested information. Therefore, the information in exhibits 23-28 must be withheld under section 552.101 of the Government Code.
You contend that the responsive information also includes certified agendas of closed sessions of the authority's Board of Commissioners. These agendas are made confidential by Government Code section 551.104, and must be withheld under section 552.101 of the Government Code. Open Records Decision No. 495 (1988). Exhibits 21 and 22 must be withheld pursuant to section 551.104 of the Government Code.
Social security numbers may be withheld in some circumstances under section 552.101 of the Government Code. A social security number or "related record" may be excepted from disclosure under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. We have no basis for concluding that any of the social security numbers in the records here are confidential under section 405(c)(2)(C)(viii)(I), and therefore excepted from public disclosure on the basis of that federal provision. We caution, however, that section 552.353 of the Public Information Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained pursuant to any provision of law, enacted on or after October 1, 1990.
You contend that the requested information includes financial information of public housing tenants. You argue that the tenant's income, disability benefits, medical and utility bills, state assistance and credit history are protected by rights of privacy. You have also marked other information which you contend is excepted by section 552.101 of the Government Code. We first note that, "personal financial information" submitted for housing assistance to the Texas Department of Housing and Community Affairs by an individual or a family, is not subject to the Public Information Act. Gov't Code § 2306.039; see Open Records Decision No. 373 (1983) (discussing federal law and personal financial information). As to the balance of the submitted information, section 552.101 protects information that is made confidential by common law and constitutional privacy rights. Common law privacy 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).
The constitutional right to privacy protects two interests. Open Records Decision No. 600 at 4 (1992) (citing Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985), cert. denied, 474 U.S. 1062 (1986)). The first is the interest in independence in making certain important decisions related to the "zones of privacy" recognized by the United States Supreme Court. Open Records Decision No. 600 at 4 (1992). The zones of privacy recognized by the United States Supreme Court are matters pertaining to marriage, procreation, contraception, family relationships, and child rearing and education. See id.
The second interest is the interest in avoiding disclosure of personal matters. The test for whether information may be publicly disclosed without violating constitutional privacy rights involves a balancing of the individual's privacy interests against the public's need to know information of public concern. See Open Records Decision No. 455 at 5-7 (1987) (citing Fadjo v. Coon, 633 F.2d 1172, 1176 (5th Cir. 1981)). 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, 492 (5th Cir. 1985), cert. denied, 474 U.S. 1062 (1986)).
In Open Records Decision No. 373 (1983), this office determined that financial information submitted by applicants for federally-funded housing rehabilitation loans and grants was "information deemed confidential" by a common law right of privacy. The financial information at issue in Open Records Decision No. 373 (1983) included sources of income, salary, mortgage payments, assets, medical and utility bills, social security and veterans benefits, retirement and state assistance benefits, and credit history. Similarly, we held that the credit reports, financial statements, and financial information included in loan files of individual veterans participating in the Veterans Land Program were excepted from disclosure by the common law right of privacy. Open Records Decision No. 523 (1989). We have stated that financial information relating to an individual applicant "ordinarily satisfies the first requirement of common law privacy, in that it constitutes highly intimate or embarrassing facts about the individual, such that its public disclosure would be highly objectionable to a person of ordinary sensibilities." Open Records Decision Nos. 523 (1989), 373 at 3 (1983).
Applying the second requirement of the common law privacy test, that the information not be of legitimate concern to the public, Open Records Decision No. 373 (1983) stated as follows:
Although any record maintained by a public body is arguably of some legitimate concern to the public, we do not believe that the second requirement of the common law privacy test can ordinarily be satisfied where the only relation of the individual to government is as an applicant for a housing rehabilitation grant. While it is true that the public has some interest in knowing whether public funds expended in such grants are being given to qualified applicants, we believe that in the ordinary situation this interest will not be sufficient to justify the invasion of the applicant's privacy that would result from disclosure of information concerning his financial status.
In particular cases, a requestor may demonstrate a public interest that will overcome the second requirement of the common law privacy test; whether there is a public interest in this information sufficient to justify its disclosure must be decided on a case-by-case basis. Open Records Decision Nos. 523 (1989), 373 (1983) at 4.
Open Records Decision Nos. 373 (1983) and 523 (1989) thus draw a distinction between the confidential "background financial information furnished to a public body about an individual" and "the basic facts regarding a particular financial transaction between the individual and the public body." Open Records Decision Nos. 523 (1989), 385 (1983). We relied on this distinction in Open Records Decision No. 385 (1983), determining that a public hospital's accounts receivable showing patients' names and the amounts they owed were open to the public. In contrast, information on amounts deposited in an inmate's jail commissary account was determined to be background financial information under the standard of Open Records Decision No. 373 (1983). Open Records Decision No. 396 (1983). Subsequent decisions of this office analyze questions about the confidentiality of background financial information consistently with Open Records Decision No. 373 (1983). See Open Records Decision Nos. 600 (1992) (personal financial information not relating to the financial transaction between an individual and a governmental body is protected), 545 (1990) (employee's participation in deferred compensation plan private), 523 (1989), 481 (1987) (individual financial information concerning applicant for public employment is closed), 480 (1987) (names of students receiving loans and amounts received from Texas Guaranteed Student Loan Corporation are public), see also Attorney General Opinions H-1070 (1977); H-15 (1973) (laws requiring financial disclosure by public officials and candidates for office do not invade their privacy rights).
We did not imply in Open Records Decision No. 373 (1983), however, that the amount of any individual grant matched with the recipient's name could be withheld from disclosure. Open Records Decision Nos. 523 (1989), 385 (1983). In Open Records Decision No. 374 (1983) for example, we held that the names of doctors who receive medicaid payments, and the amounts paid, are subject to disclosure.
Thus, we conclude that the tenant's income and sources of income, as well as medical and utility bills are background financial information, excepted from disclosure by the common law right of privacy under section 552.101. Information such as the tenant's name, the housing unit's designation, and the housing unit's monthly rent are not protected by a right of privacy. See Open Records Decision No. 480 (1987) (discussing constitutional privacy and financial information). But see Gov't Code § 2306.039) (making personal financial information submitted under department program confidential). We have marked information submitted in exhibits 18 through 20 to indicate the type of information that the department must withhold under section 552.101 of the Government Code and that which is not excepted from public disclosure by this section.
Government Code section 552.103(a), the "litigation exception," excepts from disclosure information relating to litigation to which the state or a political subdivision is or may be a party. You assert this exception for the information submitted as exhibits 29 through 34. To secure the protection of section 552.103(a), a governmental body has the burden of providing relevant facts and documents to show that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). You have provided pleadings (exhibits 37 and 38) and argue that each evidences pending litigation in which the authority is a party. The court filed pleadings themselves are expressly made public by section 552.022(a)(17) of the Government Code; exhibits 37 and 38 must be released. Further, you have also demonstrated that litigation may be anticipated in the areas of personal injury and eviction. Based on the materials submitted and your representations, we conclude that information submitted in exhibits 29 through 34 and exhibit 39 is related to pending or anticipated litigation and may be withheld under section 552.103. However, absent special circumstances, where the opposing party to the anticipated litigation has had access to the records at issue, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). If the opposing parties in the anticipated litigation have seen or had access to any of the information in these records, it must now be released. Also note that the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).
You assert that exhibits 35 and 36 are excepted from disclosure by section 552.104 of the Government Code. This section excepts from disclosure information that, if released, would give advantage to a competitor or bidder. The purpose of this exception is to protect the interests of a governmental body in competitive bidding situations. See Open Records Decision No. 592 (1991). Section 552.104 is not designed to protect the interests of private parties that submit information to a governmental body. Id. at 8-9. This exception protects information from public disclosure if the governmental body demonstrates potential specific harm to its interests in a particular competitive situation. See Open Records Decision Nos. 593 at 2(1991), 463 (1987), 453 at 3 (1986). A general allegation or a remote possibility of an advantage being gained is not enough to invoke the protection of section 552.104. Open Records Decision Nos. 541 at 4 (1990), 520 at 4 (1989), 463 at 2 (1987). You assert that information in exhibits 35 and 36 relates to requests for bids for which no bid packages have been submitted. Most of the submitted information was apparently made available to prospective bidders. You have not demonstrated that the information submitted in Exhibits 35 and 36 is excepted from disclosure by section 552.104 of the Government Code. You do not explain, nor is it apparent to this office, how release of the submitted information would give advantage to a competitor or bidder. This information must therefore be released.
The submitted documents additionally include information that is excepted under section 552.130 of the Government Code. This section governs the release and use of information obtained from motor vehicle records, and provides in relevant part as follows:
(a) Information is excepted from [required public disclosure] if the information relates to:
(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or]
(2) a motor vehicle title or registration issued by an agency of
You must withhold driver's license numbers, VIN numbers, and the license plate numbers pursuant to section 552.130.
This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).
If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).
If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).
If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.
Michael Jay Burns
Ref: ID# 131169
Encl. Submitted documents
cc: Mr. Brendan Gill
1. The protection of section 552.102 of the Government Code is the same as the common law privacy interests protected under section 552.101 of the Government Code. Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd n.r.e.). Therefore section 552.102 is not separately addressed. You raise section 552.107 as excepting your exhibit 39. Exhibit 39 is found to be excepted under section 552.103. Therefore section 552.107 is not addressed.
2. 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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