|Office of the Attorney General - State of Texas
December 12, 2000
Mr. Alfredo Montano, Jr.
Dear Mr. Montano:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 142158.
The City of Weslaco (the "city") received a request for the complete agenda package for a September 19, 2000 meeting, including all handouts passed out at the meeting such as insurance bids and municipal judge applications. You state that you have released some of the information but claim that the requested municipal judge applications are excepted under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information.
Section 552.101 excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 also encompasses the doctrines of common law and constitutional privacy. Common law privacy protects information if (1) the information contains highly intimate or embarrassing facts the publication 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, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). 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 applicants for public employment. See Open Records Decision Nos. 605 at 2 (1992); 455 at 7, 9 (1987).
Constitutional privacy consists of two interrelated types of privacy: (1) the right to make certain kinds of decisions independently and (2) an individual's interest in avoiding disclosure of personal matters. Open Records Decision No. 455 at 4 (1987). The first type protects an individual's autonomy within "zones of privacy" which include matters related to marriage, procreation, contraception, family relationships, and child rearing and education. Id. The second type of constitutional privacy requires a balancing between the individual's privacy interests and the public's need to know information of public concern. Id. The scope of information protected is narrower than that under the common law doctrine of privacy; the information must concern the "most intimate aspects of human affairs." Id. at 5 (citing Ramie v. City of Hedwig Village, Texas, 765 F.2d 490 (5th Cir. 1985)).
It does not appear from the face of the records, nor have you shown, that the applications for municipal judge contain information protected under either common law or constitutional privacy. Therefore, we find that you may not withhold information contained in the applications under section 552.101.
We note, however, that to the extent that any of these applicants is employed by the city, information in their applications concerning their home address and phone number, social security number, and family member information may be excepted under section 552.117 of the Government Code. Section 552.117 excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024. Therefore, the city must withhold the home address, home telephone number, social security number, and family member information of any applicant employed by the city, to the extent the applications contain such information, if that person elected to keep such information confidential under section 552.024 before the request for information was made. Gov't Code § 552.117; see Open Records Decision No. 455 at 2 (1987) (section 552.117 does not apply to applicants for governmental employment, but employees hired by the governmental body).
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 Dep't of Pub. 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 Hadassah Schloss at the General Services Commission at 512/475-2497.
Nathan E. Bowden
Ref: ID# 142158
Encl: Submitted documents
cc: Mr. Robert Theobald