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July 26, 2000

Mr. Scott A. Durfee
General Counsel
Office of the District Attorney
Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002

OR2000-2839

Dear Mr. Durfee:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 137379.

The Harris County District Attorney (the "district attorney") received at least eleven requests from the same requestor for seventy-two categories of information relating to the district attorney's office, in general, the district attorney himself, and two named assistant district attorneys.(1) You claim that the information responsive to twenty-five of the categories is excepted from disclosure under sections 552.101, 552.102, 552.103, 552.108, and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of the information requested.(2)

We note initially that although the district attorney raises section 552.103 of the Government Code to except from required public disclosure portions of the responsive information, you have not submitted arguments in support of such a claim. The governmental body has the burden of providing relevant facts and documents to show that section 552.103(a) is applicable in a particular situation. Therefore, because it is a discretionary exception(3) and you have made no argument in support of your section 552.103 claim, we do not address that particular claimed exception.

We note that the requestor seeks the disclosure of the personal financial statements of the district attorney and a specified assistant district attorney that were filed under section 159.007 of the Local Government Code. Section 159.007 provides that financial statements filed under Subchapter A of Chapter 159 are public records. Therefore, any such personal financial statements filed under chapter 159 of the Local Government Code must be released pursuant to the provisions of that chapter.

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 act. Therefore, we will first address whether section 552.101 applies to the responsive information.

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 may 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). Section 552.101 also incorporates the constitutional right to privacy. The United States Constitution protects two kinds of individual privacy interests. The first interest is an individual's interest in independently making certain important personal decisions about matters that the United States Supreme Court has stated are within the "zones of privacy," as described in Roe v. Wade, 410 U.S. 113 (1976) and Paul v. Davis, 424 U.S. 693 (1976). The "zones of privacy" implicated in the individual's interest in independently making certain kinds of decisions include matters related to marriage, procreation, contraception, family relationships, and child rearing and education. The second individual privacy interest involves matters that are outside the zones of privacy but that nevertheless implicate an "individual's interest in non-disclosure or confidentiality." Open Records Decision No. 455 at 4 (1987) (quoting Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir. 1981). To determine whether a given situation triggers the constitutional right to privacy, this office applies a balancing test, weighing the individual's interest in privacy against the pubic right to know the information. See Open Records Decision No. 455 at 5 (citing Ramie v. City of Hedwig Village, 765 F.2d 490, 492 (5th Cir. 1985)).

Accordingly, under section 552.101 in conjunction with common law and constitutional privacy, information may be withheld from public disclosure in special circumstances. See Open Records Decision No. 169 (1977). We consider "special circumstances" to refer to a very narrow set of situations in which release of the information would likely cause someone to face "an imminent threat of physical danger." Id. at 6. We note that "special circumstances" do not include "a generalized and speculative fear of harassment or retribution." Id.

The requested information includes the personnel file, the work schedule, and other personal documents of a named assistant district attorney. You explain that you believe that the documents relating to this named individual "should be withheld for her personal safety." The named assistant district attorney in question has also submitted an affidavit recounting a phone conversation during which the requestor appeared to make a specific threat against her. Based on your representations, the affidavit, and our review of the submitted documents, we find that the release of the information related to the assistant district attorney in question would likely result in an imminent threat of physical danger to her. Accordingly, under section 552.101 in conjunction with common law and constitutional privacy, the district attorney must withhold the responsive information relating to the specified assistant district attorney's personnel file and other personal information. We have marked the information that the district attorney must withhold.

Additionally, some of the information submitted as to the other named individuals consists of personal financial information that must be withheld under section 552.101 in conjunction with common law privacy. As discussed above, information must be withheld under section 552.101 and common law privacy when it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and there is no legitimate public interest in its disclosure. Industrial Found., 540 S.W.2d at 685; Open Records Decision No. 611 at 1 (1992). The fact that an employee participates in a group insurance plan funded by a governmental employer and the amount of any consequent payroll deduction is not information that is excepted from disclosure. Open Records Decision No. 600 at 9 (1992). However, information relating to an employee's choice of insurance carrier and his election of optional coverages is confidential under the common law right of privacy. Id. at 10-11. Similarly, this office has determined that information revealing the personal financial decision to have certain deductions made from an employee's paycheck meets the Industrial Foundation test. Open Records Decision No. 545 (1990). Therefore, the information regarding choice of beneficiary, paycheck deductions, and optional coverages is protected by common law privacy as encompassed by section 552.101. See Open Records Decision No. 600 at 10 (1992). We have marked examples of the types of personal financial information that must be withheld under section 552.101. The district attorney claims that the information responsive to categories one, fourteen, fifteen, and sixteen is excepted from disclosure under section 552.108 of the Government Code. Section 552.108(b) excepts from disclosure "[a]n internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution . . . ." This section excepts from disclosure the internal records and notations of law enforcement agencies and prosecutors when their release would interfere with law enforcement and crime prevention. Open Records Decision No. 531 at 2 (1989) (quoting Ex parte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977)). When section 552.108(b) is claimed, the agency claiming it must reasonably explain, if the information does not supply the explanation on its face, how releasing the information would unduly interfere with law enforcement. Open Records Decision No. 434 at 3 (1986). You represent that these requests constitute requests for prosecutorial work product. After reviewing the submitted sample of documents, we agree. Therefore, you may withhold the information requested in categories one, fourteen, fifteen, and sixteen under section 552.108(b)(3).

However, section 552.108 is inapplicable to basic information about an arrested person, an arrest, or a crime. Gov't Code 552.108(c). We believe such basic information refers to the information held to be public in Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Thus, you must release any basic front page offense and arrest information found within the requested documents.

The district attorney claims that portions of the remaining information responsive to the other request categories are excepted from disclosure under section 552.117 of the Government Code. Section 552.117 requires that you withhold the home address, telephone number, social security number, or information revealing whether a public employee has family members, of a public employee or official who requests that this information be kept confidential under section 552.024. See Open Records Decision Nos. 622 (1994), 455 (1987). You may not, however, withhold the information of a current or former employee who made the request for confidentiality under section 552.024 after this request for 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). In the instant case, all three of the named individuals whose information was requested have made timely requests for confidentiality under section 552.024. Thus, you must withhold the home addresses, home telephone numbers, social security numbers, and family member information for the three named individuals in this request. We have marked the types of information you must withhold.

Section 552.130 of the Government Code excepts from disclosure 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. Therefore, you must withhold all Texas driver's license numbers, license plate numbers, and VIN numbers contained in the requested information. We have marked examples of the type of information that you must withhold under section 552.130.

In summary, you must release any financial statements filed under Chapter 159 of the Local Government Code in accordance with the provisions of that chapter. The district attorney must withhold the personnel file, work schedule, and other personal documents of the specified assistant district attorney. We have marked examples of the types of personal financial information that must be withheld under section 552.101 of the Government Code and common law privacy. The information responsive to request categories one, fourteen, fifteen, and sixteen may be withheld under section 552.108 of the Government Code. The home addresses, phone numbers, social security numbers, and family member information for the three named individuals in this request must be withheld under section 552.117 of the Government Code. Finally, all Texas driver's license numbers, license plate numbers, and VIN numbers must be withheld under section 552.130 of the Government Code. The remaining responsive 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,

Katherine Minter Cary
Assistant Attorney General
Interim Division Chief

Open Records Division

KMC/nc

Ref: ID# 137379

Encl. Submitted documents

cc: Mr. James Craig Guetersloh
16006 Maple Acres Court
Houston, Texas 77095
(w/o enclosures)


 

Footnotes

1. The district attorney has informed this office of attempts to clarify and narrow the request. It appears from the correspondence submitted to this office that the requestor has limited the number of documents he is seeking "to include all documents which will fill 'just under' six archival boxes." Although the volume of documents has been limited, it is not clear to this office that the scope of the request has been limited as well. Therefore, this ruling addresses all of the responsive information that the district attorney claims is excepted from required public disclosure.

2. In reaching our conclusion here, we assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

3. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 592 at 8 (1991) (governmental body may waive section 552.104, information relating to competition or bidding), 549 at 6 (1990) (governmental body may waive informer's privilege), 522 at 4 (1989) (discretionary exceptions in general). See also Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-6 (Tex. App.-Dallas 1999, no pet.) (governmental body may waive litigation exception, section 552.103).
 

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