|Office of the Attorney General - State of Texas
March 15, 2000
Mr. Steven D. Monté
Dear Mr. Monté:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 132951.
The City of Dallas (the "city") received a request for information contained in a personnel file for a city employee. You claim that a portion of the requested information is excepted from disclosure under sections 552.101 and 552.102 of the Government Code. We assume that you have released the remainder of the responsive information to the requestor. See Gov't Code §§ 552.301, .302. We have considered the exceptions you claim and have reviewed the submitted information.
You assert that the submitted information is excepted from disclosure pursuant to section 552.101 of the 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 protected by other statutes. In Open Records Decision No. 641 (1996), this office determined that medical information obtained pursuant to the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12101 et seq., is confidential under section 552.101 of the Government Code in conjunction with 42 U.S.C. § 12112. See also 29 C.F.R. § 1630.14(b)(1) (providing that medical information "shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record"). Similarly, certain information is made confidential by the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2654, in conjunction with section 825.500(e) of title 29 of the Code of Federal Regulations. Section 825.500 is promulgated pursuant to authority contained in the FMLA. See 29 U.S.C. § 2654. Section 825.500(e) provides as follows:
Records and documents relating to medical certifications, recertifications or medical histories of employees or employees' family members, shall be maintained in separate files/records and be treated as confidential medical records.
29 C.F.R. § 825.500(e).(1) Under the FMLA, an employer may require a medical certification from a health care provider to support FMLA leave requests either to care for an employee's seriously ill family member or for leave due to a serious health condition that makes the employee unable to perform the functions of the employee's job. Id. § 825.305. Recertification may also be required. Id. We have identified and have segregated information that may be confidential pursuant to the ADA and the FMLA. However, we are unable to determine based upon the information provided whether the city collected and maintained the submitted information pursuant to the ADA or the FMLA. If so, the city must withhold the identified records as indicated. However, in the event the information at issue was not collected or maintained by the city pursuant to these federal statutes, we additionally examine whether the information is excepted under other provisions of law.
Portions of the submitted information are governed by provisions outside the Public Information Act. The documents at issue are subject to the Medical Practice Act (the "MPA"), found at Subtitle B of Title 3 of the Occupations Code. Section 159.002(b) states:
A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter.
Sections 159.003 and 159.004 provide exceptions to this confidentiality provision, none of which seem to apply here. See Occ. Code §§ 159.002, .003, .004.
Texas law also prohibits the public disclosure of psychological records. Communications between a patient and a mental health professional and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a mental health professional are confidential. Health & Safety Code § 611.002(a). As it does not appear that any of the exceptions to withholding the information are applicable in this instance, we conclude that the information we have marked must be withheld under the MPA and section 611.002 of the Health and Safety Code.
Additionally, you assert that the submitted information is excepted from disclosure under section 552.102. Section 552.102(a) protects "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The test to determine whether information is private and excepted from disclosure under common law privacy, which is encompassed in sections 552.101 and 552.102 of the Government Code, is whether the information is (1) highly intimate or embarrassing to a reasonable person, and (2) of no legitimate public concern. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 930 (1977); Hubert v. Harte-Hanks Tex. Newspapers Inc., 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd n.r.e.). We agree that certain information is protected by common law privacy, and have marked the information that must be withheld.
You additionally claim that some of the information is excepted from disclosure pursuant to section 552.117 of the Government Code. Section 552.117(1) excepts from required public disclosure the home addresses, home telephone numbers, social security numbers, or information revealing whether a public employee has family members of public employees who request that this information be kept confidential under section 552.024. Therefore, section 552.117 requires you to withhold the information of an employee who 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 the information of a current or former employee 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). For your convenience, we have marked the information that must be withheld under section 552.117(1). You must release any unmarked information to the requestor.
We note that the submitted information contains a social security number. The social security number in the documents is confidential if it was obtained or are maintained by the city pursuant to any provision of law, enacted on or after October 1, 1990. 42 U.S.C. section 405(c)(2)(C)(vii); see Open Records Decision No. 622 (1994).
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.
Carla Gay Dickson
Ref: ID# 132951
Encl. Marked documents
cc: Mr. David Gilmore
1. An "employer" under the FMLA includes any "public agency," as defined in section 3(x) of the Fair Labor Standards Act, 29 U.S.C. § 203(x). Id. § 825.108(a). Section 3(x) of the Fair Labor Standards Act defines "public agency" to include an agency of the United States, a state, or a political subdivision of a state, or any interstate governmental agency. See 29 U.S.C. § 203(x); see also 29 C.F.R. § 825.108. The city is a "public agency" for purposes of the Fair Labor Standards Act and an "employer" for purposes of the FMLA.
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