|Office of the Attorney General - State of Texas
September 25, 2000
Mr. Juan E. Gonzalez
Dear Mr. Gonzalez:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 139357.
The City of Mercedes Police Department (the "department"), which you represent, received a request for "any documents" regarding the dismissal of a named police officer. You have submitted for our review documents that are responsive to the request, marked by you as exhibit C. You assert that this information is excepted from disclosure under sections 552.102, 552.103, and 552.107(1) of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.
We first address the section 552.102 assertion. Section 552.102 excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Gov't Code § 552.102(a). In Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.-- Austin 1983, writ ref'd n.r.e.), the court ruled that the test to be applied to information claimed to be protected under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Foundation for information claimed to be protected under the doctrine of common law privacy as incorporated by section 552.101 of the Government Code. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Therefore, we consider together whether section 552.102 or section 552.101 in conjunction with the common law right of privacy applies to any of the submitted information.
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses common law privacy. Information must be withheld from the public as implicating the common law right to privacy 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).
This office has found that the following types of information are excepted from required public disclosure under the constitutional or common law right to privacy: some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps), personal financial information not relating to the financial transaction between an individual and a governmental body, see Open Records Decision Nos. 600 (1992), 545 (1990), and information concerning the intimate relations between individuals and their family members, see Open Records Decision No. 470 (1987).
Upon careful review of the submitted documents, we do not find any information that is protected by a right of privacy and that must be withheld from the public on that basis. See Open Records Decision Nos. 470 (1987) (public employee's job performance does not generally constitute his private affairs), 455 (1987) (public employee's job performances or abilities generally not protected by privacy), 444 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employees). We therefore conclude that the submitted information is not excepted from disclosure under sections 552.101 or 552.102 of the Government Code. We next address the section 552.103 assertion.
Section 552.103 of the Government Code, the "litigation exception," excepts from disclosure information:
[R]elating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.
[Information is excepted from disclosure] only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.
Gov't Code § 552.103. Section 552.103 was intended to prevent the use of the Public Information Act as a method of avoiding the rules of discovery in litigation. Attorney General Opinion JM-1048 at 4 (1989). The litigation exception enables a governmental body to protect its position in litigation by requiring information related to the litigation to be obtained through discovery. Open Records Decision No. 551 at 3 (1990). Contested cases conducted under the Administrative Procedure Act, chapter 2001 of the Government Code, are considered litigation under section 552.103. Open Records Decision No. 588 at 7 (1991). To show that the litigation exception is applicable, the department must demonstrate that (1) litigation was pending or reasonably anticipated at the time of the request and (2) the information at issue is related to that litigation. See Gov't Code § 552.103(a), (c); see also 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). The information you have provided indicates a grievance hearing was held pertaining to the named officer's dismissal. However, we have no indication that the grievance hearing constituted a contested case under the Administrative Procedures Act so as to be considered litigation for purposes of section 552.103. You also do not indicate that litigation is pending. To demonstrate that litigation is reasonably anticipated, the department must furnish evidence that, at the time of the request, litigation was realistically contemplated and was more than mere conjecture. Gov't Code § 552.103(c); Open Records Decision No. 518 at 5 (1989). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986). You have provided for our review two letters from the named officer's attorney which, you contend, demonstrate the applicability of section 552.103. This office has found that where a governmental body receives a demand letter from an attorney which threatens suit, litigation is reasonably anticipated for purposes of section 552.103. Open Records Decision No. 346 at 2 (1982). This office has also applied section 552.103 where a prospective plaintiff threatened to sue on several occasions and hired an attorney. Open Records Decision No. 288 at 2 (1981). In this instance, however, neither of the submitted letters threaten suit and both pertain to the grievance filed by the named officer. We have no indication that either the officer or her attorney have threatened suit. We thus conclude that you have not demonstrated the applicability of the litigation exception to any of the submitted information and that the information is therefore not excepted from disclosure by section 552.103 of the Government Code. We next address your assertion of the attorney-client privilege.
Section 552.107(1) excepts information from disclosure if it is information that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Evidence or the Texas Disciplinary Rules of Professional Conduct. See Gov't Code § 552.107(1). This exception incorporates the attorney-client privilege, found at Rule 503 of the Texas Rules of Evidence, into the Public Information Act. Section 552.107(1) does not apply to all client information held by a governmental body's attorney; rather, it excepts from public disclosure only "privileged information," i.e., communications that are made to the attorney in confidence and in furtherance of rendering professional legal services or that reveal the attorney's legal opinion or advice. Open Records Decision Nos. 589 at 1(1991), 574 at 3 (1990), 462 at 9-11(1987). Information gathered by an attorney as a fact-finder, purely factual information, and the factual recounting of events, including the documentation of calls made, meetings attended, and memos sent, are not excepted from disclosure by section 552.107(1). Open Records Decision No. 574 (1990). We believe you have demonstrated that some of the documents, primarily comprising correspondence and legal opinion memoranda, are excepted from disclosure by section 552.107(1). We have marked with red flags the documents which you have demonstrated contain information subject to the attorney-client privilege. We find that you may withhold these documents in their entirety pursuant to section 552.107(1).
Finally, we note that some of the documents contain information that the department must withhold pursuant to section 552.117 of the Government Code. This provision reads in relevant part:
Information is excepted from [required public disclosure] if it is information that relates to the home address, home telephone number, or social security number, or that reveals whether the following person has family members:
(1) a current or former official or employee of a governmental body, except as otherwise provided by Section 552.024;
(2) a peace officer as defined by Article 2.12, Code of Criminal Procedure, or a security officer commissioned under Section 51.212, Education Code, regardless of whether the officer complies with Section 552.024[.]
Section 552.117(1) requires the department to withhold information pertaining to a current or former employee or official who requested that this information be kept confidential under section 552.024. See Gov't Code § 552.024. Information may not be withheld under section 552.117(1) if the current or former employee elected non-disclosure after the present request for information was received by the department. Open Records Decision No. 622 (1994). Unlike section 552.117(1), section 552.117(2) requires the department to withhold information pertaining to a peace officer, without regard to that officer's election under section 552.024. It appears in the present case that all of the information at issue is that of peace officers. Thus, we have identified with yellow flags the documents that contain the section 552.117 information, and we have marked these documents to indicate the specific information that you must redact prior to releasing the documents.
In summary, the submitted documents are not excepted from disclosure by section 552.101, 552.102, or 552.103 of the Government Code. However, pursuant to section 552.107(1), the department may withhold in their entirety the documents we have marked with red flags. Also, although the documents we have marked with yellow flags are not excepted from disclosure in their entirety, the department must redact from these documents the specific information we have marked, pursuant to section 552.117(2). The remaining information must be released to the requestor.
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).
Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.
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.
Ref: ID# 139357
Encl. Submitted documents
cc: Mr. Travis Whitehead
1. You assert that some of the documents are protected by the attorney-client privilege and therefore excepted from required public disclosure by section 552.111 of the Government Code. We note that section 552.107(1), and not 552.111, is the appropriate exception to assert for a claim of attorney-client privilege under the Public Information Act. See Gov't Code §§ 552.107(1), .111; see also Open Records Decision No. 574 (1990). We therefore understand your contention that some of the documents are protected by the attorney-client privilege to be an assertion of section 552.107(1) and not section 552.111.
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