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May 5, 2000

Mr. Victor Alcorta III
General Counsel
Office of the Secretary of State
Executive Division
P.O. Box 12697
Austin, Texas 78711-2697

OR2000-1742

Dear Mr. Alcorta:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134753.

The Office of the Secretary of State received a request for a copy of a particular record retention schedule, the personnel file of former Secretary of State Jack Rains, and any election law opinions rendered under Secretary Rains. You inform us that you have already released to the requestor the record retention schedule, the only responsive election law opinion, and portions of the requested personnel file. You claim that the remaining portions of the personnel file are excepted from disclosure under sections 552.101, 552.102, and 552.117 of the Government Code. We have considered the exceptions 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." Gov't Code 552.102(a). In Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd n.r.e.), the court ruled that the test to be applied to information claimed to be protected under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Foundation for information claimed to be protected under the doctrine of common law privacy as incorporated by section 552.101 of the Government Code. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). Therefore, we will address whether section 552.101 applies to the requested information.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information protected by common law privacy. Common law privacy excepts from disclosure private facts about an individual. Id. 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).

This office has found that financial information relating only to an individual ordinarily satisfies the first requirement of the test for common law privacy, but that there is a legitimate public interest in the essential facts about a financial transaction between an individual and a governmental body. Open Records Decision Nos. 600 (1992), 545 (1990), 373 (1983). Thus, a public employee's allocation of his salary to a voluntary investment program offered by his employer is a personal investment decision, and information about it is excepted from disclosure by a common law right of privacy. Open Records Decision Nos. 600 (1992) (TexFlex benefits, federal tax Form W-4, Employee's Withholding Allowance Certificate; designation of beneficiary of employee's retirement benefits; direct deposit authorization; and forms allowing employee to allocate pretax compensation to group insurance, health care or dependent care), 545 (1990) (deferred compensation information, mortgage payments, assets, bills, and credit history), 523 (1989). An employee's decision to enroll for optional insurance coverages is a personal financial decision to allocate part of his compensation to optional benefits, and, therefore, the related information is excepted from disclosure by a right of privacy. Open Records Decision No. 600 (1992).

However, information regarding a financial transaction between an individual and a governmental body is a matter of legitimate public interest not generally protected from public disclosure by common law privacy. Open Records Decision Nos. 590 at 3 (1991), 523 at 3-4 (1989). For example, the salary of a public employee is not excepted from disclosure. Gov't Code 552.022(a)(2); Open Records Decision No. 342 (1982). Further, the doctrine of common law privacy does not generally except from disclosure public employee participation in an insurance program that is funded wholly or partially by his or her employer. Open Records Decision Nos. 600 at 9 (1992) (holding that an employee's participation in the Texas Municipal Retirement System or in a group insurance plan funded by the governmental body is not excepted from disclosure under common law privacy); see also Open Records Decision No. 480 (1987). In this case, after carefully reviewing your arguments and the submitted documents, we believe that potions of the submitted documents contain personal financial information that must be withheld under sections 552.101 and 552.102. We have marked the personal financial information that we believe must be withheld under these sections.(1)

You also assert the submitted documents contain information that is excepted from disclosure under section 552.117 of the Government Code. Section 552.117 excepts from public disclosure information relating to the home address, home telephone number, and social security number of a current or former government employee, as well as information revealing whether the employee has family members. Section 552.117(1) requires you to withhold this information if a current or former employee requested that this information be kept confidential under section 552.024. See Open Records Decision Nos. 622 (1994), 455 (1987).

In this instance, you have submitted as responsive to the request a disclosure form signed by Secretary Rains. You argue that on this disclosure form, Secretary Rains expressly granted the State the authority to disclose only his telephone number. You argue that because Secretary Rains "did not expressly grant the State the authority to disclose his home address and social security number--unlike his telephone number--that this information is protected from disclosure under [section 552.117.]" We note, however, that the submitted disclosure form evidences an election by Secretary Rains to allow public access to a particular home phone number as well as to his home address. Moreover, in order for information to be excepted from public disclosure under section 552.117(1), an employee or former employee must make an affirmative election under section 552.024 that the information be kept confidential. See Open Records Decision Nos. 622 (1994), 455 (1987). It is not apparent to this office that Secretary Rains has made an affirmative election to keep any information confidential under section 552.024. Therefore, we conclude that the Office of the Secretary of State may not withhold any information in the submitted documents based on section 552.117.

We note that a social security number is excepted from required public disclosure under section 552.101 of the Government Code 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). It is not apparent to us that the social security number contained in the records at issue was obtained or is maintained by the Office of the Secretary of State pursuant to any provision of law enacted on or after October 1, 1990. You have cited no law, nor are we are aware of any law, enacted on or after October 1, 1990, that authorizes the Office of the Secretary of State to obtain or maintain a social security number. Therefore, we have no basis for concluding that the social security number at issue was obtained or are maintained pursuant to such a statute and is, therefore, confidential under section 405(c)(2)(C)(viii)(I). We caution, however, that section 552.352 of the Government Code imposes criminal penalties for the release of confidential information. Prior to releasing the social security number at issue, you should ensure that the number was not obtained or is not maintained by the Office of the Secretary of State pursuant to any provision of law enacted on or after October 1, 1990.

In summary, except for the personal financial information we have marked as confidential pursuant to section 552.101 and the social security number as noted above, the requested information must be released.

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,

Kathryn S. Knechtel
Assistant Attorney General
Open Records Division

KSK/ljp

Ref: ID# 134753

Encl. Submitted documents

cc: Mr. Josh Earnest
3272 Las Palmas
Houston, Texas 77027
(w/o enclosures)


 

Footnotes

1. We note, however, that it is unclear to this office whether some of the submitted documents involve the expenditure of public funds. Therefore, if any of the marked information reflects the expenditure of public funds, that information is not protected by the right of privacy and may not be withheld on that basis. We caution you to evaluate the data carefully before releasing or withholding it. See Gov't Code 552.352.
 

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