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February11, 1999

Mr. Russell W. Malm
Midland County Attorney
200 W. Wall St., Suite 104
Midland, Texas 79701

OR99-0427

Dear Mr. Malm:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 123450.

The Midland County Attorney received a request for nine categories of information relating to a particular deputy jailer. You have released four categories of information; however, you claim that the remaining five categories of information are excepted from disclosure under section 552.102 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Section 552.102 excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Section 552.102 excepts information in personnel files only if it meets the test articulated under section 552.101(1) for common-law invasion of privacy. Hubert v. Harte-Hanks Tex. Newspapers, 652 S.W.2d 546 (Tex. App.--Austin 1993, writ ref'd n.r.e.).

For information to be protected from public disclosure by the common-law right of privacy under section 552.101, the information must meet the criteria set out in Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). In Industrial Foundation, the Texas Supreme Court stated that information is excepted from disclosure 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. Id. at 685. We have reviewed the submitted information and conclude that none of the information is protected by common-law privacy. Thus, except for the social security number discussed below, you must release the information.

The social security number in the submitted information may be excepted from public disclosure by section 552.117. 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. Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Therefore, you may only withhold the social security number under section 552.117 on behalf of the deputy jailer if he made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. Moreover, a social security number is excepted from required public disclosure under section 552.101 of the act in conjunction with 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I), if it 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).

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied on as a previous determination regarding any other records. If you have any questions regarding this ruling, please contact our office.

Yours very truly,

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL/nc

Ref.: ID# 123450

Enclosures: Submitted documents

cc: Ms. Sylvia A. Chavez
Attorney at Law
1110 N. Big Springs St.
Midland, Texas 79701
(w/o enclosures)


 

Footnotes

1. Section 552.101 excepts from disclosure" information considered to be confidential by law, either constitutional, statutory, or by judicial decision."
 

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