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February 3, 1999

Mr. John Steiner
Division Chief
City of Austin, Law Department
P. O. Box 1546
Austin, Texas 78767-1546

OR99-0318

Dear Mr. Steiner:

You ask whether certain information is subject to required public disclosure under the Texas Open Records Act (the "act"), chapter 552 of the Government Code. Your request was assigned ID# 121549.

The City of Austin (the "city") received a request for various categories of information concerning a specified individual's employment with the city. In response to the request, you submit to this office for review the information at issue. You state that "[t]he bulk of the information, to the extent it exists, will be made available to the requestor." However, on behalf of the subject of the request, you ask whether the requested information is excepted from disclosure under sections 552.101 and 552.102 of the Government Code. We have considered the exceptions and arguments you have raised and reviewed the submitted information.

Section 552.101 of the Government Code excepts from required public disclosure "information that is confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses both common-law and constitutional privacy. Under common-law privacy, private facts about an individual are excepted from disclosure. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). 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 552.102(a) protects "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The protection of section 552.102 is the same as that of the common-law right to privacy under section 552.101. Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd n.r.e.). Consequently, we will consider these two exceptions together for the submitted records.

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. 540 S.W.2d at 683. The information at issue does not comport with this standard.

The submitted information at issue relates to the performance and behavior of a public employee. There is a legitimate public interest in the workplace behavior of a public employee and how he or she performs job functions. Open Records Decision Nos. 470 at 4 (1987) (public has legitimate interest in job performance of public employees), 444 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employees), 423 at 2 (1984) (scope of public employee privacy is narrow). Under the facts presented, we conclude that the public has a legitimate right to this information, therefore, the city may not withhold any portion of the submitted information under the claimed exceptions.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Yours very truly,

Sam Haddad
Assistant Attorney General
Open Records Division

SH/nc

Ref.: ID# 121549

Enclosures: Submitted documents

cc: Mr. Mike Robinson
925 Blue Spring Circle
Round Rock Texas 78681
(w/o enclosures)


 

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