|Office of the Attorney General - State of Texas
July 14, 2000
Ms. Regina Grimes
Dear Ms. Grimes:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136601.
The Texas Department of Criminal Justice (the "department") received a request for the following information: 1) all documents indicating the number of employees of the Division of Pardons and Paroles who were stationed in three specified buildings in January, May, and August, 1990, including a breakdown by building number and floor; 2) any name changes, the last known addresses, and the birth dates or social security numbers of various specified current and former employees of the department; 3) the lease between the State of Texas or subdivision thereof and DuPont or the current owner of the premises at 8610 Shoal Creek Boulevard starting in about 1997, or whenever the new owner took over the building or lease when Ra-Hart Investment Company sold the property; and 4) a copy of any studies, analyses, reports, or documents concerning the air quality of the specified buildings at around the time when Ra-Hart sold the buildings. You claim that the requested information is excepted from disclosure under sections 552.103 and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.(1)
Section 552.103(a) excepts from disclosure information relating to litigation to which a governmental body is or may be a party. The governmental body has the burden of providing relevant facts and documents to show that section 552.103(a) is applicable in a particular situation. In order to meet this burden, the governmental body must show that (1) litigation has been pending or reasonably anticipated since the date of receipt of the request, 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 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990); Gov't Code § 552.103. The governmental body must meet both prongs of this test for information to be excepted under section 552.103.
You state that the department is reasonably anticipating litigation because several employees of the department have filed claims for benefits with the Workers' Compensation Commission ("WCC"). You note that the WCC is pursuing these claims as is evidenced by a "February 1, 2000 Texas Workers' Compensation Commission Benefit Review Conference."(2) You liken the department's situation here to that of an employer whose current or former employee files a complaint with the Equal Employment Opportunity Commission (the "EEOC"), and therefore claim that litigation involving the department is reasonably anticipated.
Although you correctly note that this office has ruled that a pending complaint before the Equal Employment Opportunity Commission (the "EEOC") indicates a substantial likelihood of litigation relating to the complaint, Open Records Decision Nos. 386 at 2 (1983), 336 at 1 (1982), we are not convinced of your analogy. On its face, the fact that there has been a WCC benefit review conference merely indicates that the insurance carrier has initially refused to pay benefits to the claimants. Labor Code § 409.021. Even if any one of these claims disputes eventually resulted in a contested case before the WCC,(3) a possibility which you have not shown to be reasonably anticipated, you have not shown that the department would become a party to such a proceeding. Therefore, we find that the department has not shown that it reasonably anticipates litigation. Consequently, the department may not withhold any of the requested information under section 552.103.
You also claim that portions of the requested information are confidential under section 552.117 of the Government Code. Subsection 552.117(3) provides for the confidentiality of home addresses, home telephone numbers, and social security numbers of the department's employees, as well as information that would reveal whether the employees have family members. The documents submitted as a representative sample of information responsive to request-item number 2 contain the social security numbers and home addresses of current and former employees of the department. Following the plain text of section 552.117(3), we believe that only the social security numbers and home addresses of the current employees are confidential under this provision. Therefore, under section 552.117(3), the department must withhold the social security numbers and home addresses of the current department employees only.
However, we note that section 552.117(1) makes confidential the same types of information covered by section 552.117(3) but for current and former employees of governmental bodies who request that this information be kept confidential under section 552.024. Therefore, section 552.117(1) requires the department to withhold the social security numbers and home addresses of any former employees who have submitted timely elections under section 552.024. See Open Records Decision Nos. 622 (1994), 455 (1987).
Moreover, the social security numbers of the former employees who have not submitted timely elections under section 552.024 may be confidential nevertheless under section 552.101 in conjunction with federal law. Section 552.101 excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Social security numbers and related records are excepted from disclosure under section 552.101 in conjunction with 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I), if the social security number information was obtained or is maintained by a governmental body pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 (1994). Therefore, if the former employees' social security numbers contained in the requested documents meet the criteria of section 405(c)(2)(C)(viii)(I), then they are confidential under this provision as encompassed by section 552.101.
Finally, we note that some of the submitted documents contain bank account numbers of current and former employees. Section 552.101 excepts from required public disclosure "information that is confidential by law, either constitutional, statutory, or by judicial decision." Under common law privacy, private facts about an individual are excepted from disclosure. Industrial Foundation v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). 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 type of information considered intimate and embarrassing by the Texas 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. 540 S.W.2d at 683. However, common law privacy does not apply to embarrassing or intimate information "unless the records [at issue] are also of no legitimate interest to the public." Open Records Decision No. 470 at 4 (1987); see also Open Records Decision No. 464 (1987). Furthermore, the public has a genuine interest in information concerning a public employee's job performance and the reasons for dismissal, demotion or promotion. Open Records Decision No. 444 at 5-6 (1986); see also Open Records Decision No. 208 (1978) (disciplinary action against public employee available to public).
Moreover, in Open Records Decision No. 373 (1983), we concluded that personal financial information can generally be considered highly intimate and embarrassing:
In our opinion, all financial information relating to an individual -- including sources of income, salary, mortgage payments, assets, medical and utility bills, social security and veterans benefits, retirement and state assistance benefits, and credit history -- 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. . . .
However, information regarding a financial transaction between an individual and a governmental body is a matter of legitimate public interest not generally protected from public disclosure by common law privacy. Open Records Decision Nos. 590 at 3 (1991), 523 at 3-4 (1989). For example, the salary of a public employee is not excepted from disclosure. Open Records Decision No. 342 (1982). Further, the doctrine of common law privacy does not generally except from disclosure public employee participation in an insurance program that is funded wholly or partially by his or her employer. Open Records Decision Nos. 600 at 9 (1992). Of course, personal financial information does not meet the test for common law privacy unless it is also of no legitimate interest to the public. In Open Records Decision No. 373 (1983), we concluded that the determination of whether the public's interest in obtaining highly intimate and embarrassing information is sufficient to justify its disclosure must be made on a case-by-case basis. Here, we find that the bank account numbers of current and former employees are confidential under common law privacy as encompassed by section 552.101. Therefore, the department must withhold such bank account numbers contained in the requested information.
In conclusion, the department must withhold from the responsive information the social security numbers and home addresses of current employees under section 552.117(3). Under section 552.117(1), the department must withhold the social security numbers and home addresses of former employees who timely submitted elections for such confidentiality pursuant to section 552.024. For those former employees who did not timely elect for confidentiality under section 552.024, the department may still be required to withhold those former employees' social security numbers depending on whether those social security numbers are confidential under section 552.101 in conjunction with the Social Security Act. Finally, the department must withhold the employees' bank account numbers that appear in the requested information under common law privacy as encompassed by section 552.101. The department must release the remainder of the requested information.
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.
E. Joanna Fitzgerald
Ref: ID# 136601
Encl: Submitted documents
cc: Mr. Earl Staelin
1. We assume that the "representative sample" of records submitted to this office is truly representative of all of the information at issue. 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 those submitted to this office.
2. You have provided us with neither the notice of the review conference nor the agreement or report that presumably resulted from the conference. See Labor Code §§ 410.025(c), 410.029, 410.031.
3. Labor Code § 410.151.
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