|Office of the Attorney General - State of Texas
July 5, 2000
Ms. Ruth H. Soucy
Dear Ms. Soucy:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136772.
The Comptroller of Public Accounts (the "comptroller") received a request for information related to a former employee, information related to another specified employee, and information related to reorganization of the comptroller's office announced April 14, 2000.
You state that the public portion of the requested records will be provided to the requestor. You claim that the requested information is excepted from disclosure under sections 552.101,
The comptroller asserts that some of the information at issue is protected from disclosure pursuant to section 552.101 of the Government Code in conjunction with the provisions of Title I of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§ 12101 et seq. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." The ADA provides that information about the medical conditions and medical histories of applicants or employees must be 1) collected and maintained on separate forms, 2) kept in separate medical files, and 3) treated as a confidential medical record. 29 C.F.R. § 1630.14(c), Open Records Decision No. 641 (1996). Because the information pertains to the employee's medical condition and medical history, we agree that some of the information at issue is confidential under the ADA. We have marked the information that the comptroller must withhold under section 552.101 and the ADA.
Section 552.101 of the Government Code also protects information recognized by the common law right of privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976). The doctrine of common law privacy protects information that contains highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and the information must be of no legitimate concern to the public. Id. The type of information considered intimate and embarrassing by the supreme court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683.
We have reviewed the submitted information and have marked the information that we find is protected under common law privacy. You must withhold this marked information pursuant to section 552.101 and common law privacy. Accordingly, you may not withhold the remaining information under section 552.101 and common law privacy.
Section 552.111 excepts "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." In Open Records Decision No. 615 (1993), this office reexamined the predecessor to the section 552.111 exception in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ), and held that section 552.111 excepts only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. An agency's policymaking functions, however, do not encompass internal administrative or personnel matters; disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. Open Records Decision No. 615 at 5-6 (1993). In addition, section 552.111 does not except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. Id. at 4-5. Drafts of a document enjoy protection from disclosure only if the governmental body has or will release the document in its final form. ORD 615.
We have reviewed the representative information and have marked the information that we believe the comptroller may withhold under section 552.111. We note that of the remaining information, you have not explained how the information you seek to redact relates to any specific policy deliberation of the department. For those documents that you identify as drafts, you do not state that they have been released in final form, or that the comptroller intends to release them in final form. If they have been or will be released to the public in final form, the comptroller may withhold them under section 552.111. Otherwise, the comptroller may only withhold the portions of the draft documents that reflect the comptroller's policymaking processes.
Section 552.117(1) of the Government Code excepts from required public disclosure the home addresses, telephone numbers, social security numbers, or information revealing whether a public employee has family members when the public employee requests that this information be kept confidential under section 552.024. Therefore, section 552.117(1) requires you to withhold this information of a current or former employee or official 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).
We have reviewed the submitted information and agree that some of the information is apparently protected by section 552.117(1). You also seek to withhold information containing portions of employee social security numbers under section 552.117(1). We agree that social security information is confidential even in this partial, attenuated form and must not be disclosed. You must withhold the information that we have marked if the employee elected not to allow public access in accordance with section 552.024.
In summary, the comptroller must withhold certain medical information regarding an employee under section 552.101 in conjunction with the ADA. The comptroller must withhold a personal electronic correspondence under section 552.101 in conjunction with common law privacy. Additionally, the comptroller may withhold certain intraagency communications under section 552.111 of the Government Code. Finally, the comptroller must withhold certain employee information under section 552.117(1). The comptroller must release the remaining information. We have marked the information in accordance with this ruling.
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.
Noelle C. Letteri
Ref: ID# 136772
Encl. Submitted documents
cc: Mr. W. Gardner Selby
1. We note that item 4 of the request asks for information contained in the former employee's personnel file. We find that the documents submitted to this office do not contain representative samples of information that are responsive to this item of the request. Therefore, we have no basis for finding it confidential. Thus, we have no choice but to order the information responsive to item 4 of the request released per section 552.302. If you believe the information is confidential and may not lawfully be released, you must challenge the ruling in court as outlined below.
2. In reaching our conclusion here, 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) (where requested documents are numerous and repetitive, governmental body should submit representative sample; but if each record contains substantially different information, all must be submitted). 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.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US