|Office of the Attorney General - State of Texas
October 24, 2000
Mr. Delmar L. Cain
Dear Mr. Cain:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 140466.
The Texas A&M International University (the "university") received a request for information regarding a former university employee's payroll deductions and other general employment information. You have released the dates of employment, beginning and ending salary, and job titles. However, you ask this office whether certain payroll deductions and insurance information are excepted from disclosure under section 552.101 or 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.
You state that you do not have information responsive to one item of the request, regarding the date insurance lapsed if the employee did not choose COBRA. The Public Information Act does not require a governmental body to answer factual questions, conduct legal research, or create new information in response to a request, but a governmental body must make a good faith effort to relate a request to information which it holds. Open Records Decision Nos. 563 (1990), 561 (1990), 555 (1990), 534 (1989). Nevertheless, we find your statement to us, copied to the requestor, contains a sufficient response, that the university's insurance plans "extend coverage to employees through the last day of the month of their separation from their employment."
The remaining items of information requested relate to the dates and amounts of certain payroll deductions. You assert that sections 552.101 and 552.117 of the Government Code protect this information from required public disclosure. Section 552.117 of the Government Code excepts from required public disclosure the home address, telephone number, social security number, or information revealing whether a public employee has family members of a public employee who requests that this information be kept confidential under section 552.024 of the Government Code. 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 prior to the request for information being made. See Open Records Decision Nos. 622 (1994), 530 (1989), 455 (1987). You provide evidence that this former employee did elect to keep this information confidential prior to this request for information being made. We have marked the information the university must withhold under section 552.117.
You also claim that some of the requested information is confidential under 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." Accordingly, section 552.101 excepts from disclosure information considered confidential under the common law right to privacy. Information is protected by the common law right to privacy if (1) the information contains highly intimate or embarrassing facts the release of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).
Financial information concerning an individual is in some cases protected by a common law right of privacy. See Open Records Decision Nos. 545 (1990), 523 (1989). A previous opinion of this office states that "all financial information relating to an individual . . . 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." Open Records Decision No. 373 at 3 (1983). The case of public employees presents special considerations. Information regarding a financial transaction between a person and a governmental body is a matter of legitimate public interest; thus the second prong of the Industrial Foundation test is not met, and the doctrine of common law privacy does not protect this information from disclosure. Open Records Decision No. 385 at 2 (1983). Examples of financial transactions considered to be between the person and the governmental body include: a donation to a public institution, Open Records Decision No. 590 (1991); a debt owed to a public hospital, Open Records Decision No. 385 (1983); and a public employee's participation in an insurance program funded wholly or partially by his employer, Open Records Decision No. 600 (1992). However, a public employee's participation in a voluntary investment program or deferred compensation plan that is not funded by the governmental body is not considered a financial transaction between the individual and the governmental body. As this type of information meets both prongs Industrial Foundation test, it is considered confidential and is excepted from public disclosure. Open Records Decision No. 545 (1990). We have marked the personal financial information that the university must withhold under section 552.101 in conjunction with common law privacy. See also Open Records Decision No. 600 at 9-12 (1992).
In summary, the university must withhold all section 552.117 information. The university must withhold the personal financial information we have marked under section 552.101 and common law privacy. The university must release the remaining requested information 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.
Patricia Michels Anderson
Encl. Submitted documents
cc: Ms. Maria E. Salinas
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US