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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 17, 2002

Mr. Gordon Bowman
Assistant County Attorney
Travis County
P.O. Box 1748
Austin, Texas 78767

OR2002-7234

Dear Mr. Bowman:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173770.

The Travis County Human Resources Management Department (the "county") received a request for personnel and travel reimbursement information regarding a named former assistant district attorney. You indicate that the county will release most of the requested information to the requestor. You claim, however, that portions of the information are excepted from disclosure under sections 552.101 and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.101 of the Government Code excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. You contend that some of the submitted documents are medical records, access to which is governed by the Medical Practice Act (the "MPA"), chapter 159 of the Occupations Code. Section 159.002 of the MPA provides:

(a) A communication between a physician and a patient, relative to or in connection with any professional services as a physician to the patient, is confidential and privileged and may not be disclosed except as provided by this chapter.

(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.

Information that is subject to the MPA includes both medical records and information obtained from those medical records. See Occ. Code 159.002, .004; Open Records Decision No. 598 (1991). This office has concluded that the protection afforded by section 159.002 extends only to records created by either a physician or someone under the supervision of a physician. See Open Records Decision Nos. 487 (1987), 370 (1983), 343 (1982). Upon review, we determine that the documents you seek to withhold under the MPA were not created or maintained by a physician or someone under the supervision of a physician. Moreover, you do not state, and the documents themselves do not indicate, that the information in the documents was obtained from medical records. Therefore, we determine that the county may not withhold these documents pursuant to the MPA.

Next, you have marked information that you claim is confidential under section 58.007 of the Family Code. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. The relevant language of section 58.007(c) reads as follows:

(c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:

(1) if maintained on paper or microfilm, kept separate from adult files and records;

(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B.

Prior to its repeal by the Seventy-fourth Legislature, section 51.14(d) of the Family Code provided for the confidentiality of juvenile law enforcement records. Law enforcement records pertaining to conduct occurring before January 1, 1996 are governed by the former section 51.14(d), which was continued in effect for that purpose. Act of May 27, 1995, 74th Leg., R.S., ch. 262, 100, 1995 Tex. Gen. Laws 2517, 2591 (Vernon).

This office previously concluded that section 58.007 of the Family Code, as enacted by the Seventy-fourth Legislature, did not make confidential juvenile law enforcement records relating to conduct that occurred on or after January 1, 1996. Open Records Decision No. 644 (1996). The Seventy-fifth Legislature, however, amended section 58.007 to once again make juvenile law enforcement records confidential effective September 1, 1997. Act of June 2, 1997, 75th Leg., R.S., ch. 1086, 1997 Tex. Sess. Law Serv. 4179, 4187 (Vernon). The legislature chose not to make this most recent amendment retroactive in application. Consequently, law enforcement records pertaining to juvenile conduct that occurred between January 1, 1996 and September 1, 1997, are not subject to the confidentiality provisions of either the former section 51.14(d) or the current section 58.007 of the Family Code.

You contend that the name of a juvenile offender appearing in the submitted documents is confidential under section 58.007 or section 51.14 of the Family Code. However, we note that the document in which the name appears is not a juvenile law enforcement record. Therefore, we determine that the county may not withhold the name from disclosure pursuant to section 552.101 and the confidentiality provisions of either the former section 51.14(d) or the current section 58.007 of the Family Code.

We next address your contention that this juvenile's name is protected from disclosure under section 552.101 in conjunction with the doctrine of common-law 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 Found. v. Texas Indus. Accident Bd., 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 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. Upon review, we determine that the name of the juvenile offender at issue is not protected by common-law privacy. Cf. Fam. Code 58.007, 51.14.

You assert that the requested personnel records contain some financial information that is also protected by common-law privacy. This office has found that personal financial information is generally excepted from required public disclosure under common-law privacy. Open Records Decision Nos. 600 (1992) (public employee's decisions regarding personal financial matters such as a voluntary investment program, voluntary benefits programs, and voluntary direct deposit, among others, are protected under common-law privacy), 545 (1990). This office has also ruled, however, that the public has a legitimate interest in the essential facts about a financial transaction between an individual and a governmental body. See Open Records Decision No. 600 (1992) (information revealing that employee participates in group insurance plan funded partly or wholly by governmental body is not excepted from disclosure). Upon review, we find that portions of the personnel records at issue, which we have marked, contain information that reflects personal financial decisions that are not of legitimate public interest. Accordingly, the county must withhold such information under section 552.101 and common-law privacy.

The submitted documents also contain the former employee's W-4 forms. A W-4 form is confidential under section 6103 of title 26 of the United States Code. The county must withhold the submitted W-4 forms under section 552.101 of the Government Code in conjunction with federal law.

You also claim that portions of the personnel records are excepted from disclosure udner section 552.117 of the Government Code. Section 552.117(1) excepts from public disclosure the home address, home telephone number, and social security number of a current or former employee of a governmental body, as well as information that reveals whether the person has family members, if the current or former employee requested that this information be kept confidential under section 552.024. See Open Records Decision Nos. 622 at 5-6 (1994), 455 at 2-3 (1987). You state, and the documents reflect, that the employee at issue timely elected to keep this information confidential pursuant to section 552.024. Accordingly, we determine that the county must withhold the former employee's home address, home telephone number, social security number, and family member information under section 552.117(1) of the Government Code.

We note that the address of another individual appears in one of the documents. You have marked this address as information to be withheld pursuant to section 552.117. If this individual is a current or former county employee, and if this individual timely elected to keep this address confidential pursuant to section 552.024, we determine the county must withhold this address under section 552.117(1) of the Government Code. Otherwise, the county must release this address to the requestor.

The submitted documents also contain information that is subject to section 552.136 of the Government Code. Section 552.136 provides in relevant 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; or

(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.

The county must withhold the account number information that we have marked pursuant to section 552.136 of the Government Code.

Finally, you have marked information relating to a Wisconsin driver's license that you seek to withhold under section 552.130 of the Government Code. Section 552.130 excepts from public disclosure information relating to a driver's license or motor vehicle title or registration issued by an agency of this state. Gov't Code 552.130(a). Accordingly, we determine that the Wisconsin driver's license information you have marked may not be withheld under section 552.130.

In summary, we have marked personal financial information that must be withheld under section 552.101 and common-law privacy. The former employee's W-4 forms must be withheld under section 552.101 and federal law. We have marked information that the county must withhold under section 552.117 of the Government Code. If another individual, whose address appears in one of the documents, is a current or former employee who elected to keep the address confidential pursuant to section 552.024, then the county must withhold this address under section 552.117 of the Government Code. Otherwise, the address must be released. The county must withhold the account number information we have marked pursuant to section 552.136 of the Government Code. The remainder of the submitted information must be released to the requestor.

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,

Nathan E. Bowden
Assistant Attorney General
Open Records Division
NEB/DRS/seg
Ref: ID# 173770
Enc: Submitted documents

c: Ms. C.J. Treadway
1122 Colorado, Suite 301
Austin, Texas 78701
(w/o enclosures)


 

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