Office of the ATTORNEY GENERAL
December 5, 2002
Ms. April M. Virnig
Dear Ms. Virnig:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID#173169.
The Haltom City Police Department (the "department"), which you represent, received a request for a copy of the personnel files of two police officers. You claim that the requested information is excepted from disclosure under sections 411.083, 552.101, 552.102, 552.114, 552.115, 552.117, 552.119, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.
You claim that some of the information contained in the personnel files is excepted from disclosure under section 552.101 in conjunction with common law privacy, and under section 552.102. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information that is protected by the common law right of privacy. Common law privacy protects information if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation includes 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. 540 S.W.2d at 683.
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. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Accordingly, we will consider your section 552.101 and section 552.102 claims together.
This office has found that some kinds of medical information or information indicating disabilities or specific illnesses are excepted from required public disclosure under common law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 545 (1990) (information concerning the intimate relations between individuals and their family members), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). We have marked the medical information that is excepted from disclosure under section 552.101 and common law.
This office has also determined that some personal financial information is highly intimate or embarrassing and thus meets the first part of the Industrial Foundation test. See Open Records Decision Nos. 600 (1992) (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). However, where a transaction is funded in part by the state, it involves the employee in a transaction with the state and is not protected by privacy. Thus, information about the essential features of an employee's participation in a group insurance program funded in part by the state involves him in a transaction with the state and, therefore, is not excepted from disclosure by a right of privacy. On the other hand, information relating to an employee's choice of insurance carrier and his election of optional coverages is confidential under the right of privacy. Id. at 10-11. Similarly, this office has determined that information revealing the personal financial decision to voluntarily have certain deductions made from an employee's paycheck meets the Industrial Foundation test. Open Records Decision No. 545 (1990). We have marked the personal financial information that is excepted from disclosure under section 552.101 and common law privacy.
You also claim that the submitted documents contain criminal history information that is protected by common law privacy. Where an individual's criminal history information has been compiled by a governmental entity, the information takes on a character that implicates the individual's right to privacy. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). We have marked the criminal history information that is protected under common law privacy and must also be withheld under section 552.101.
Section 552.101 also excepts information that is made confidential by statute. Criminal history record information ("CHRI") generated by the National Crime Information Center ("NCIC") or by the Texas Crime Information Center ("TCIC") must be withheld under section 552.101. Title 28, part 20 of the Code of Federal Regulations governs the release of CHRI that states obtain from the federal government or other states. Open Records Decision No. 565 (1990). The federal regulations allow each state to follow its individual law with respect to CHRI it generates. Id. Section 411.083 of the Government Code deems confidential CHRI that the Department of Public Safety ("DPS") maintains, except that the DPS may disseminate this information as provided in chapter 411, subchapter F of the Government Code. See Gov't Code § 411.083.
Sections 411.083(b)(1) and 411.089(a) of the Government Code authorize a criminal justice agency to obtain CHRI; however, a criminal justice agency may not release CHRI except to another criminal justice agency for a criminal justice purpose. Id. § 411.089(b)(1). Other entities specified in chapter 411 of the Government Code are entitled to obtain CHRI from DPS or another criminal justice agency; however, those entities may not release CHRI except as provided by chapter 411. See generally id. §§ 411.090 - .127. Thus, any CHRI generated by the federal government or another state may not be made available to the requestor except in accordance with federal regulations. See Open Records Decision No. 565 (1990). Furthermore, any CHRI obtained from DPS or any other criminal justice agency must be withheld under section 552.101 of the Government Code in conjunction with Government Code chapter 411, subchapter F. We have marked the CHRI that must be withheld section 552.101 of the Government Code.
The submitted information also contains a declaration of medical condition and a declaration of psychological and emotional health. Both declarations are made confidential by section 1701.306 of the Occupations Code, which provides, in relevant part, as follows:
(a) The commission may not issue a license to a person as an officer or county jailer unless the person is examined by:
(1) a licensed psychologist or by a psychiatrist who declares in writing that the person is in satisfactory psychological and emotional health to serve as the type of officer for which a license is sought; and
(2) a licensed physician who declares in writing that the person does not show any trace of drug dependency or illegal drug use after a physical examination, blood test, or other medical test.
(b) An agency hiring a person for whom a license as an officer or county jailer is sought shall select the examining physician and the examining psychologist or psychiatrist. The agency shall prepare a report of each declaration required by Subsection (a) and shall maintain a copy of the report on file in a format readily accessible to the commission. A declaration is not public information.
Occ. Code § 1701.306. We have marked the information that is confidential under section 1701.306 of the Occupations Code and is therefore excepted from disclosure under section 552.101 of the Government Code.
In addition, some of the information in the personnel file is made confidential by section 1703.306 of the Occupations Code, which provides:
(a) A polygraph examiner, trainee, or employee of a polygraph examiner, or a person for whom a polygraph examination is conducted or an employee of the person, may not disclose information acquired from a polygraph examination to another person other than:
(1) the examinee or any other person specifically designated in writing by the examinee;
(2) the person that requested the examination;
(3) a member, or the member's agent, of a governmental agency that licenses a polygraph examiner or supervises or controls a polygraph examiner's activities;
(4) another polygraph examiner in private consultation; or
(5) any other person required by due process of law.
Occ. Code § 1703.306. We find that certain information in the personnel file was obtained during the application process through polygraph examinations. It does not appear that any of the exceptions in section 1703.306 apply. Accordingly, the information we have marked is confidential pursuant to section 1703.306 of the Occupations Code and is therefore excepted from disclosure under section 552.101 of the Government Code.
You note that the personnel files you submitted to this office for review include an Employment Eligibility Verification, Form I-9 (Tab 2-4). Form I-9 is governed by title 8, section 1324a of the United States Code, which provides that the form "may not be used for purposes other than for enforcement of this chapter" and for enforcement of other federal statutes governing crime and criminal investigations. 8 U.S.C. § 1324a(b)(5); see 8 C.F.R. § 274a.2(b)(4). Release of this document under the Public Information Act would be "for purposes other than for enforcement" of the referenced federal statutes. Accordingly, we conclude that Form I-9, which we have marked, must be withheld under section 552.101 and may only be released in compliance with the federal laws and regulations governing the employment verification system.
You also note that the submitted documents contain employee W-4 forms that must be withheld under section 552.101. Employee W-4 forms are excepted from disclosure under section 552.101 in conjunction with section 6103(a) of title 26 of the United States Code. Open Records Decision No. 600 (1992). The department must therefore withhold the W-4 forms, which we have marked, under section 552.101.
You argue that some of the submitted documents are protected under section 552.117 of the Government Code. However, we note that some of these documents have apparently been filed with a court and is therefore subject to section 552.022(a)(17). Section 552.022(a)(17) provides:
(a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:
. . . .
(17) information that is also contained in a public court record . . . .
Gov't Code § 552.022(a)(17). Thus, information contained in the court documents must be released under section 552.022 unless it is expressly confidential under other law. Section 552.117(2) of the Government Code excepts from disclosure the home addresses and telephone numbers, social security numbers, personal pager numbers, and family member information of peace officers, regardless of whether the officer elected confidentiality under section 552.024 of the Government Code. See Gov't Code § 552.117(2). See also Open Records Decision No. 670 (2001) (providing that a governmental body may withhold the home address, home telephone number, personal cellular phone number, personal pager number, social security number, and family member information of a peace officer under section 552.117(2)). The court documents along with other submitted documents contain information that is excepted from disclosure under section 552.117(2). The department must withhold those portions of the court documents and responsive records that reveal a peace officer's home address, home telephone number, social security number, personal pager number, and that reveals whether the officer has family members. The department must also withhold the officer's former home addresses and telephone information. See Open Records Decision No. 622 (1994). We have marked the information in the court documents and other submitted documents that is subject to section 552.117(2) and must be withheld.
Section 552.119 excepts from public disclosure a photograph of a peace officer that, if released, would endanger the life or physical safety of the officer unless one of three exceptions applies. The three exceptions are: (1) the officer is under indictment or charged with an offense by information; (2) the officer is a party in a fire or police civil service hearing or a case in arbitration; or (3) the photograph is introduced as evidence in a judicial proceeding. This section also provides that a photograph exempt from disclosure under this section may be made public only if the peace officer gives written consent to the disclosure. Open Records Decision No. 502 (1988). The submitted copies of photographs depict a peace officer, and you state that none of the exceptions are applicable. Additionally, it does not appear that the peace officers have executed any written consent to disclosure. Thus, you must withhold under section 552.119 the photographs depicting the peace officers that we have marked.
You also argue that some submitted information is protected from disclosure under section 552.130 of the Government Code. Section 552.130 provides in relevant part:
(a) Information is excepted from the requirement of Section 552.021 if the information relates to:
(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or]
(2) a motor vehicle title or registration issued by an agency of this state[.]
We have marked the motor vehicle information that must be withheld under section 552.130.
We note that the submitted documents contain an account number that is subject to section 552.136 of the Government Code. Section 552.136 makes certain access device numbers confidential and provides in pertinent part:
(a) In this section, "access device" means a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to:
(1) obtain money, goods, services, or another thing of value;
(2) initiate a transfer of funds other than a transfer originated solely by paper instrument.
(b) Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential.
Gov't Code § 552.136. Accordingly, the department must withhold the account number that we have marked pursuant to section 552.136 of the Government Code.
We also note that you assert that the submitted student records are excepted under section 552.114 of the Government Code. Section 552.114 excepts from disclosure student records at an educational institution funded completely or in part by state revenue. Because the department is not an educational agency or institution, the submitted transcripts are not education records to which section 552.114 applies. Consequently, the submitted transcripts are not excepted under section 552.101 in conjunction with section 552.114 of the Government Code.
You also assert that a birth certificate in the submitted information is excepted under section 552.115 of the Government Code. Birth or death records maintained by the bureau of vital statistics of the Texas Department of Health or a local registration official are excepted from required public disclosure under section 552.115 of the Government Code. However, because the department is not the bureau of vital statistics or a local registration official, section 552.115 is inapplicable.
You also contend that certain information pertaining to the employee's retirement benefits is made confidential under section 855.115(a) of the Government Code, which protects certain information contained in records that are in the custody of the retirement system concerning an individual member, retiree, annuitant, or beneficiary. The submitted documents are in the custody of the department, not the retirement system. Thus, we conclude that the department may not withhold these records pursuant to section 552.101 of the Government Code in conjunction with section 855.115(a) of the Government Code.
Finally, you assert that certain documents among the submitted information are covered by the Medical Practice Act (the "MPA"), chapter 159 of the Occupations Code. Section 159.002 of the MPA provides, in relevant part, as follows:
(b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter.
(c) A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.
Upon review of the submitted information, none of the submitted information was created or maintained by a physician. Therefore, we conclude that none of the information constitutes medical records subject to the MPA.
To summarize: You must withhold the medical, personal financial, and criminal history information we have marked that is protected by common law privacy and therefore excepted from disclosure under sections 552.101 and 552.102. We have also marked the CHRI, the polygraph results, the W-4 forms, the I-9 forms, and the medical and psychological declarations that are all made confidential by statute and must be withheld under section 552.101. You must also withhold under section 552.117(2) those portions of the records that we have marked that reveal the officer's home address, home telephone number, personal pager number, social security number, and whether the officer has family members. We have also marked the photographs depicting the peace officers that must be withheld under section 552.119, the motor vehicle information that must be withheld under section 552.130, and the account number that must be withheld under section 552.136. The department must release the remaining information.
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.
Heather Pendleton Ross
c: Mr. Michael Logan Ware
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US