Click for home page Office of the Attorney General - State of Texas
John Cornyn
image
 

December 27, 1999

Ms. Katherine Minter Cary
Assistant Attorney General
Public Information Coordinator
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548

OR99-3771

Dear Ms. Cary:

You ask this office to clarify Open Records Letter No. 99-2754 (1999). Your request was assigned ID# 130562.

The Office of the Attorney General (the "OAG") received a request for documents in the personnel file of a former employee. In Open Records Letter No. 99-2754, this office marked information that the OAG must withhold based on common-law privacy and several confidentiality provisions.

Among other things, we concluded that some of the information at issue is protected from disclosure pursuant to section 552.101 of the Government Code(1) in conjunction with the provisions of Title I of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. 12101 et seq. The ADA provides that information about the medical conditions and medical histories of applicants or employees must be 1) collected and maintained on separate forms, 2) kept in separate medical files, and 3) treated as a confidential medical record. In addition, information obtained in the course of a "fitness for duty examination," conducted to determine whether an employee is still able to perform the essential functions of his job, is to be treated as a confidential medical record. 29 C.F.R. 1630.14(c). You ask this office to clarify our markings on some of the documents. You explain that the documents for which you seek clarification are maintained by the Human Resources Division in a separate, medical file, and therefore, are confidential under the ADA. Because the information pertains to the employee's medical condition and medical history and is maintained in a separate, medical file, we agree that the documents at issue, submitted as Exhibit B, are confidential under the ADA.

You further explain that Exhibit C is not responsive to the request. Therefore, you need not release Exhibit C.

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 Dep't 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.

Sincerely,

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL/ljp

Ref: ID# 130562

Encl. Submitted documents

cc: Ms. Tiffany Hall
Division Admin. Manager
Texas Department of Transportation
P.O. Box 2293
Austin, Texas 78768
(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."
 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer


Home | ORLs