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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 5, 2002

Mr. Thomas E. Myers
Brackett & Ellis
100 Main Street
Fort Worth, Texas 76102-3090

OR2002-6928

Dear Mr. Myers:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173206.

The Grapevine-Colleyville Independent School District (the "district"), which you represent, received a request for "public records relating to the swim center and the swim center manager." The district sought clarification of the request on the basis that the request was too broad. See Gov't Code 552.222 (providing that if request for information is unclear, governmental body may ask requestor to clarify request). The district subsequently received a clarification specifying the particular categories of information sought by the requestor relating to the swim center, an audit of the swim center, and the swim center director. We note that your request for a decision does not address any categories of the request apart from audit information and parental complaints against the swim center director, nor have you raised any exceptions to disclosure of the other requested information. We assume that the district has released all other requested information to the extent that it exists. If it has not, it must do so at this time. See Gov't Code 552.021, .301, .302; Open Records Decision No. 664 (2000) (concluding that section 552.221(a) requires that information not excepted from disclosure must be released as soon as possible under circumstances). You claim that the requested audit is not public information subject to disclosure under chapter 552. In the alternative, you claim that the audit is excepted from disclosure under section 552.107 of the Government Code, Texas Rule of Evidence 503, and Texas Rule of Civil Procedure 192.5. You further claim that the requested complaints are excepted from disclosure under sections 552.102 and 552.114 of the Government Code, and the Family Educational Rights and Privacy Act of 1974 ("FERPA"). We have considered your arguments and have reviewed the submitted information.

As an initial matter, we note your representation in relation to the audit at issue that a final audit has not yet been provided to the district, and that you only possess a draft copy of the audit. The Public Information Act (the "Act") does not require a governmental body to disclose information that did not exist at the time the request was received. Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986). Nor does the Act require a governmental body to inform a requestor if the requested information comes into existence after the request is made. Open Records Decision No. 452 at 8. Thus, we do not address your arguments in relation to a final audit report not in existence at the time the request for information was received.

We now address your arguments in relation to the draft audit. Section 552.002 of the Government Code defines public information as "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it." Thus, under this provision, information is generally "public information" within the scope of the Act when it relates to the official business of a governmental body or is maintained by a public official or employee in the performance of official duties, even though it may be in the possession of one person. See Open Records Decision No. 635 at 4 (1995). Further, information that is collected, assembled, or maintained by a third party may be subject to disclosure under chapter 552 of the Government Code if it is maintained for a governmental body, the governmental body owns or has a right of access to the information, and the information pertains to the transaction of official business. See Open Records Decision No. 462 (1987); Open Records Decision No. 499 (1988) (relevant facts in determining whether information held by consultant is subject to the Act are: 1) information collected by consultant must relate to governmental body's official business; 2) consultant must have acted as agent of governmental body in collecting information; and 3) governmental body must have or be entitled to access to information).

Moreover, if a governmental entity employs an agent to carry out a task that otherwise would have been performed by the entity itself, information relating to that task that has been assembled or maintained by the agent is subject to disclosure under the Act. See Open Records Decision Nos. 585 (1991), 445 (1986) (information prepared by private entity at request or under direction of city subject to disclosure), 437 (1986) (overruled by Open Records Decision No. 585 (1991) to the extent it suggests that governmental body can waive its right of access to information gathered on behalf of governmental body).

You inform this office that the district requested that you, as the attorney for the district, conduct an investigation pertaining to the swim center. In order to perform the investigation, you retained an accounting firm to conduct a forensic audit and provide advice concerning financial matters relating to the swim center. You have provided a copy of the retainer letter, which indicates that the accounting firm is being retained by you on behalf of the district and that the firm is to provide consulting services for the district. Although you state that the draft audit has not been provided to the district, you state that it has been provided to you by the auditors. Based on these representations, we find that the draft audit is information collected by you as a consultant in relation to the district's official business, that you were acting as the district's agent in collecting the information, and that the district is entitled to have access to the information. See Open Records Decision No. 499 at 5 (as general rule, records held by private attorney that are related to legal services performed by attorney at request of governmental body are subject to Act). Thus, we conclude that the draft audit constitutes "public information" under section 552.002 of the Government Code. See Gov't Code 552.002,.021.

We now address your claim under section 552.107 in relation to the draft audit. Section 552.107(1) excepts from public disclosure

information that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Civil Evidence, the Texas Rules of Criminal Evidence, or the Texas Disciplinary Rules of Professional Conduct[.]

Gov't Code 552.107(1). Section 552.107(1) protects information that comes within the attorney-client privilege. In instances where an attorney represents a governmental entity, the attorney-client privilege protects only an attorney's legal advice and the client's communications made in confidence to the attorney. See Open Records Decision No. 574 (1990). Accordingly, these two classes of information are the only information that may be withheld pursuant to the attorney-client privilege under section 552.107(1).

You state that the draft audit was created under the retainer agreement between the attorney representing the district and the auditor, and that the agreement "was expressly made to assist the attorney in his provision of legal services to the [d]istrict." We note that the attorney-client privilege encompasses "confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . between the client or a representative of the client and the client's lawyer or a representative of the lawyer." Tex. R. Evid. 503(b)(1)(A). Based on your representations and our review of the information, we find that the attorney-client privilege is applicable to the submitted draft audit. Thus, the district may withhold it under section 552.107(1) of the Government Code. As section 552.107 is dispositive for this information, we need not address your arguments under Rule of Evidence 503 or Rule of Civil Procedure 192.5.

You further claim that the submitted complaint information regarding the swim center director is excepted from disclosure under section 552.102 of the Government Code. 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 Public Information Act.(1) See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). For information to be protected from public disclosure by the common-law right of privacy under section 552.101, the information must meet the criteria set out in Industrial Foundation. In Industrial Foundation, the Texas Supreme Court stated that information is excepted from disclosure if (1) the information contains highly intimate or embarrassing facts the release of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Id. at 685.

The types of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. This office has also found that the following types of information are excepted from required public disclosure under common-law privacy: some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps), and personal financial information pertaining to voluntary financial decisions and financial transactions that do not involve public funds, see Open Records Decision Nos. 600 (1992), 545 (1990).

On the other hand, a public employee's job performance does not generally constitute his or her private affairs. Open Records Decision No. 470 (1987); see Open Records Decision Nos. 329 at 2 (1982) (information relating to complaints against public employees and discipline resulting therefrom is not protected under former section 552.101 or 552.102), 208 at 2 (1978) (information relating to complaint against public employee and disposition of complaint is not protected under either constitutional or common-law right of privacy). See also Open Records Decision No. 444 at 5-6 (1986) (public has genuine interest in information concerning public employee's job performance and reasons for dismissal, demotion or promotion). After reviewing the information at issue, we conclude that none of it is protected under the common-law right to privacy. Therefore, you may not withhold any of the information under section 552.102.

However, a small portion of the complaint information may be excepted from disclosure under section 552.117. Section 552.117(1) excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024. Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Thus, if the district employee whose personal information is at issue elected under section 552.024, prior to the district's receipt of the request, to keep this information confidential, you must withhold it under section 552.117(1) of the Government Code. You may not withhold this information under section 552.117 if the employee did not make a timely election under section 552.024. We have marked the information that you must withhold if section 552.117 applies.

Finally, we note that you have redacted some information within the submitted complaints pursuant to the Family Educational Rights and Privacy Act of 1974 ("FERPA"). FERPA provides that no federal funds will be made available under any applicable program to an educational agency or institution that releases personally identifiable information (other than directory information) contained in a student's education records to anyone but certain enumerated federal, state, and local officials and institutions, unless otherwise authorized by the student's parent. See 20 U.S.C. 1232g(b)(1). "Education records" means those records that contain information directly related to a student and are maintained by an educational agency or institution or by a person acting for such agency or institution. Id. 1232g(a)(4)(A). This office generally applies the same analysis under section 552.114 and FERPA. Open Records Decision No. 539 (1990).

Section 552.114 excepts from disclosure student records at an educational institution funded completely or in part by state revenue. Section 552.026 provides as follows:

This chapter does not require the release of information contained in education records of an educational agency or institution, except in conformity with the Family Educational Rights and Privacy Act of 1974, Sec. 513, Pub. L. No. 93-380, 20 U.S.C. Sec. 1232g.

In Open Records Decision No. 634 (1995), this office concluded that (1) an educational agency or institution may withhold from public disclosure information that is protected by FERPA and excepted from required public disclosure by sections 552.026 and 552.101 without the necessity of requesting an attorney general decision as to those exceptions, and (2) an educational agency or institution that is state-funded may withhold from public disclosure information that is excepted from required public disclosure by section 552.114 as a "student record," insofar as the "student record" is protected by FERPA, without the necessity of requesting an attorney general decision as to that exception. Information must be withheld from required public disclosure under FERPA only to the extent "reasonable and necessary to avoid personally identifying a particular student." See Open Records Decision Nos. 332 (1982), 206 (1978).

Thus, we agree that, to the extent the information you have redacted identifies particular students, it must not be disclosed unless the district has authority to release the information under the federal law.

In summary, we find that the submitted draft audit is public information subject to disclosure under chapter 552. However, you may withhold the draft audit under section 552.107. The personal information we have marked pursuant to section 552.117 must be withheld if the employee to whom the information pertains made a timely election under section 552.024. The redacted information within the submitted documents must be withheld under FERPA and section 552.114 to the extent that it personally identifies particular students. The remaining 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).

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 Hadassah Schloss at the Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code 552.325. 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,

Kristen Bates
Assistant Attorney General
Open Records Division
KAB/seg
Ref: ID# 173206
Enc. Submitted documents

c: Ms. Ellena Morrison
Fort Worth Star-Telegram
3201 Airport Freeway
Bedford, Texas 76022
(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," including information covered by the common-law right of privacy.
 

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