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March 17, 2000

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

OR2000-1073

Dear Ms. Cary:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your requests were assigned ID#s 133173 and 135088. We have combined these files and will consider the issues presented in this single ruling assigned ID# 133173.

The Office of the Attorney General (the "OAG") received a request for ". . . all information, in every medium and without limitation, relating to or concerning: (1) each and every step (and by whom) to comply [referring to his 11/23/99 request] (2) Name and location of all files reviewed (3) personnel files on everyone involved, including each of those to whom this matter was copied forwarded, advised, discussed, etc." Subsequently, the OAG received from the same requestor four requests for information which you have determined to be the exact information responsive to the first request. You indicate that you have released responsive information related to categories number 1 and 2. You claim that the information requested in category 3, which you have submitted as Exhibits C and F, is excepted from disclosure under sections 552.101, 552.117, 552.102(b) and 552.130 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information.

You assert that portions of the submitted information are excepted from disclosure 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." Section 552.101 encompasses common law privacy and excepts from disclosure private facts about an individual. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Therefore, information must be withheld from the public 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). Previously, this office has found that common law privacy protects an individual's personal financial information which is not related to a financial transaction between the individual and a governmental body. It appears that some of the submitted information relates to the employees' personal financial decisions which are protected by section 552.101. Specifically, this office has ruled that an employee's direct deposit authorization, participation in TexFlex program, and optional coverage election must be withheld pursuant to section 552.101. Open Records Decision Nos. 600 (1992), 545 (1990). On the other hand, financial information that reflects the employee's mandatory contributions to the OAG's health plan must be disclosed. Open Records Decision No. 600 (1992). For your convenience, we have marked the information in the submitted documents that must be withheld under section 552.101 in conjunction with the common law right to privacy.

You also claim that other financial information is also excepted from disclosure pursuant to section 552.101 of the Government Code. This section encompasses information protected by other statutes. An employee's federal tax Form W-4 is protected from disclosure under section 552.101 in conjunction with 26 U.S.C. 6103(a). Likewise, Employment Eligibility Information Form I-9 forms are excepted from disclosure by 8 U.S.C. 1324a(b)(5). See Open Records Decision No. 600 (1992). Therefore, the OAG must withhold the employees' W-4 forms and I-9 forms in their entirety. Additionally, the OAG must withhold other federal tax return information. See 26 U.S.C. 6103(b)(2)(A); Open Records Decision No. 600 (1990). We have marked the federal tax return information that must be withheld.

You argue that the transcript included in the submitted materials is excepted from disclosure by section 552.102(b) of the Government Code. Section 552.102(b) excepts transcripts from institutions of higher education that are maintained in the personnel file of a professional public school employee. Section 552.102(b) is inapplicable to the submitted transcript. Accordingly, the OAG must release the transcript to the requestor. See Open Records Decision Nos. 470 (1987); 467 (1987) (public has legitimate interest in job qualifications, including college transcripts, of public employees).

Additionally, you claim that certain information is excepted from disclosure under section 552.117 of the Government Code. Section 552.117 excepts from disclosure the home addresses, telephone numbers, social security numbers and family information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024. The OAG may not, however, withhold this information for a current or former official or employee who made a request for confidentiality under section 552.024 after the request for this information was made. Whether a particular piece of information is public must be determined at the time the request for it is made. Open Records Decision No. 530 at 5 (1989). You have submitted to this office information that demonstrates that the OAG employees elected to keep their home addresses, home telephone numbers, social security numbers, and family information confidential prior to the date on which the OAG received the request for information. Thus, section 552.117 excepts the employees' home addresses, home telephone numbers, social security numbers and family from disclosure. We have marked the information which the OAG must withhold pursuant to section 552.117 of the Government Code.

Finally, you contend that Exhibit C contains a driver's license number which is excepted from disclosure pursuant to section 552.130 of the Government Code. Section 552.130 excepts information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. We agree that you must withhold the driver's license number. We have marked the information that you must withhold under section 552.130. You must release all unmarked information to the requestor. We have marked Exhibits C and F in accordance with this ruling.

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).

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,

Carla Gay Dickson
Assistant Attorney General
Open Records Division

CGD/ch

Ref: ID# 133173

Encl. Marked documents

cc: Mr. Stephen N. Lisson
INITIATE !!
P.O. Box 2013
Austin, Texas 78766-2013
(w/o enclosures)


 

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