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November 6, 2000

Ms. Rebecca Brewer
Abernathy Roeder Boyd & Joplin P.C.
P.O. Box 1210
McKinney, Texas 75070-1210

OR2000-4322

Dear Ms. Brewer:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 141066.

The City of Frisco (the "city"), which you represent, received a request for the requestor's entire employment packet including application investigation notes, attachments, and any other items pertaining to the application with the police department. You claim that the requested information is excepted from disclosure because the requestor previously signed a waiver of her right to review the requested information. We have considered your arguments and reviewed the submitted information.

You assert that the language of section 552.023 of the Government Code allows the city to withhold the requested information. Section 552.023 provides the following:

(a) A person or a person's authorized representative has a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected form public disclosure by laws intended to protect that person's privacy interests.

(b) A governmental body may not deny access to information to the person, or the person's representative, to whom the information relates on the grounds that the information is considered confidential by privacy principles under this chapter but may assert as grounds for denial of access other provisions of this chapter or other law that are not intended to protect the person's privacy interests.

(emphasis added). You contend that the waiver signed by the requestor constitutes "other law" and, therefore, you need not release the requested information under section 552.023. You have provided a copy of an authorization for release of personal information (the "authorization") that the requestor signed during the employee applicant process. The authorization contains the following language:

I further agree to waive any right whatsoever to the background investigation or psychological report developed through this waiver.

You argue that this waiver allows you to withhold the requested information. However, it is well established that a governmental body cannot, through a contract, overrule or repeal provisions of the Public Information Act (the "Act"). Attorney General Opinion JM-672 (1987); see also Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668,677 (Tex. 1976), cert. denied 430 U.S. 931 (1977).

Further, we do not consider the waiver to be "other law" that would serve as a ground for denial of access to the requested information. As provided by section 552.101 of the Government Code, "other law" is defined as constitutional law, statutory law, or a judicial decision. Because the city does not argue that the requested information falls into one of the Act's exceptions to disclosure and the waiver does not constitute "other law," we conclude that the information must be released, notwithstanding the waiver between the city and the requestor specifying otherwise.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB\er

Ref: ID# 141066

Encl: Submitted documents

cc: Ms. Michele Watney
2006 Old McGarrah
McKinney, Texas 75070
(w/o enclosures)


 

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