|Office of the Attorney General - State of Texas
February 14, 2000
Mr. Tim R. Taylor
Dear Mr. Taylor:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 132177.
Titus County (the "county") received a request for a specified written determination issued by the Equal Employment Opportunity Commission (the "EEOC") on completion of its investigation of employment discrimination based on allegations of sexual harassment in the county workplace. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. You have supplied the responsive information to this office for review. We have considered the exception you claim and reviewed the submitted information.
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. The EEOC is constrained by 42 U.S.C. 2000e (e), which reads
It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty, of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.
This statute, and related federal regulations, applies to information held by the EEOC, that was obtained during an EEOC investigation of employment discrimination. The submitted document was sent to the county in its capacity as an entity against whom charges have been filed with the EEOC. This document, in the hands of the county, is not made confidential by federal law. See Open Records Decision No. 245 (1980).
Section 552.101 also encompasses common law privacy protections. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Information may be withheld under section 552.101 in conjunction with the common law right to privacy if the information (1) 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) is of no legitimate concern to the public. Id. The court addressed the applicability of the 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 and prior decisions of this office, see e.g. Open Records Decision Nos. 393 (1983), 339 (1982), 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. We note that 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, see Open Records Decision Nos. 438 (1986), 230 (1979), 219 (1978), and therefore, the identity of the alleged offender may not be withheld from the requestor.
In this case, the identity of the alleged victim is known to the requestor, a member of the press. As this identity is apparently public knowledge, we are of the opinion that withholding it here serves no purpose. However, we conclude that the details of the alleged acts of harassment must be withheld. We have marked the submitted information to indicate that portion which must be withheld under section 552.101 of the Government Code in conjunction with common law privacy.
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# 132177
Encl. Submitted documents
cc: Mr. Glenn M. Evans
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US