|Office of the Attorney General - State of Texas
April 27, 1999
Mr. Jerry Bruce Cain
Dear Mr. Cain:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 124427.
The City of Laredo received a request for information relating to an incident involving a fire department employee. You seek to withhold portions of the information responsive to the request under section 552.101 of the Government Code.
Section 552.101 requires withholding "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information coming within the common-law and constitutional rights to privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Common-law privacy protects information if it is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and it is of no legitimate concern to the public. Id. at 683-85. We have examined the information which you claim is protected by common law privacy. Even assuming the information at issue is "highly intimate or embarrassing," we believe that there is a legitimate public interest in most of the information, since it pertains to job-related conduct of a public employee. However, we have marked a portion of the February 23, 1999 memorandum you submitted which we believe is protected by common law privacy and must consequently be withheld.
The constitutional right to privacy consists of two related interests: 1) the individual interest in independence in making certain kinds of important decisions, and 2) the individual interest in independence in avoiding disclosure of personal matters. The first interest applies to the traditional "zones of privacy" described by the United States Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), and Paul v. Davis, 424 U.S. 693 (1976). These "zones" include matters related to marriage, procreation, contraception, family relationships, and child rearing and education and are not, we believe, implicated here.
The second interest, in nondisclosure or confidentiality, may be somewhat broader than the first. Unlike the test for common-law privacy, the test for constitutional privacy involves a balancing of the individual's privacy interests against the public's need to know information of public concern. Although such a test might appear more protective of privacy interests than the common-law test, the scope of information considered private under the constitutional doctrine is far narrower than that under the common law; the material must concern the "most intimate aspects of human affairs." See Open Records Decision No. 455 (1987) (citing Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985)). Again, we do not believe the information at issue implicates this aspect of constitutional privacy.
Therefore, none of the information at issue may be withheld under constitutional privacy.
As indicated, section 552.101 also protects information made confidential by statute. You claim that portions of the requested information are made confidential by section 143.089 of the Local Government Code. That section provides:
(a) The director [of the fire fighters' and police officers' civil service] or the director's designee shall maintain a personnel file on each fire fighter and police officer. The personnel file must contain any letter, memorandum, or document relating to:
(1) a commendation, congratulation, or honor bestowed on the fire fighter or police officer by a member of the public or by the employing department for an action, duty, or activity that relates to the person's official duties;
(2) any misconduct by the fire fighter or the police officer if the letter, memorandum, or document is from the employing department and if the misconduct resulted in disciplinary action by the employing department in accordance with this chapter; and
(3) the periodic evaluation of the fire fighter or police officer by a supervisor.
(b) A letter, memorandum, or document relating to alleged misconduct by the fire fighter or police officer may not be placed in the person's personnel file if the employing department determines that there is insufficient evidence to sustain the charge of misconduct.
(c) A letter, memorandum, or document relating to disciplinary action taken against the fire fighter or police officer or to alleged misconduct by the fire fighter or police officer that is placed in the person's personnel file as provided by Subsection (a)(2) shall be removed from the employee's file if the commission finds that:
(1) the disciplinary action was taken without just cause; or
(2) the charge of misconduct was not supported by sufficient evidence.
(d) If a negative letter, memorandum, document, or other notation of negative impact is included in a fire fighter's or police officer's personnel file, the director or the director's designee shall, within 30 days after the date of the inclusion, notify the affected fire fighter or police officer. The fire fighter or police officer may, on or before the 15th day after the date of receipt of the notification, file a written response to the negative letter, memorandum, document, or other notation..
(e) The fire fighter or police officer is entitled, on request, to a copy of any letter, memorandum, or document placed in the person's personnel file. The municipality may charge the fire fighter or police officer a reasonable fee not to exceed actual cost for any copies provided under this subsection.
(f) The director or the director's designee may not release any information contained in a fire fighter's or police officer's personnel file without first obtaining the person's written permission, unless the release of the information is required by law.
(g) A fire or police department may maintain a personnel file on a fire fighter or police officer employed by the department for the department's use, but the department may not release any information contained in the department file to any agency or person requesting information relating to a fire fighter or police officer. The department shall refer to the director or the director's designee a person or agency that requests information that is maintained in the fire fighter's or police officer's personnel file..
Local Gov't Code § 143.089.
You contend that the portions of the requested information at issue are maintained in a "fire department personnel file" pursuant to subsection (g) of section 143.089 and that their disclosure is prohibited by that provision. We note first that subsection (a)(2) of section 143.089 requires that information relating to employee misconduct be placed in the employee personnel ("civil service") file if the misconduct resulted, as here, in disciplinary action. Moreover, Open Records Decision No. 562 (1990) held that section 143.089(g) merely imposes a procedural requirement that requestors must follow in order to obtain information contained in police officers' and fire fighters' civil service personnel files. Information contained in such civil service files must be released unless the information comes within one of the act's exceptions to required public disclosure.
We have reviewed the information you advise is in the fire fighter's personnel file. Some of that information must be withheld under section 552.130 of the Government Code, which provides in part:
(a) Information is excepted from [required public disclosure] 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 type of information that must be withheld under section 552.130.
Also, some of the information may be required to be withheld under sections 552.024 and 552.117, which provide that a public employee or official can opt to keep private his or her home address, home telephone number, social security number, or information that reveals that the individual has family members. You must withhold this information if, as of the time of the request for the information, the employee had elected to keep the information private. Open Records Decision Nos. 530 (1989), 482 (1987), 455 (1987). We have marked the kinds of information which may be required to be withheld under sections 552.024 and 552.117. Except as noted above, you must release the requested records.
We note finally that the information you submitted as your Exhibit 7 appears to be an accident report ("DPS report") completed pursuant to chapter 550 of the Transportation Code. See Transp. Code §§ 550.063, 550.064 (accident reports on forms approved by Department of Public Safety). As discussed below, the release of such reports is currently governed by provisions of former Vernon's Texas Civil Statutes article 6701d rather than provisions of the Transportation Code.
The Seventy-fifth Legislature, repealed article 6701d, and amended section 550.065 of the Transportation Code concerning the disclosure of accident report information. Act of May 29, 1997, 75th Leg., R.S. ch. 1187, 1997 Tex. Sess. Law Serv. 4575 (Vernon), (to be codified at Transp. Code § 550.065). However, a Travis County district court has issued a temporary injunction enjoining the enforcement of the amendment to section 550.065 of the Transportation Code. Texas Daily Newspaper Ass'n, v. Morales, No. 97-08930 (345th Dist. Ct., Travis County, Tex., Oct. 24, 1997) (second amended agreed temporary injunction). A temporary injunction preserves the status quo until the final hearing of a case on its merits. Janus Films, Inc. v. City of Fort Worth, 358 S.W.2d 589 (1962). The supreme court has defined the status quo as "the last, actual peaceable, non-contested status that preceded the pending controversy." Texas v. Southwestern Bell Tel. Co. 526 S.W.2d 526, 528 (Tex. 1975). The status quo of accident report information prior to the enactment of S.B. 1069 is governed by section 47 of article 6701d, V.T.C.S.(1)
Section 47(b)(1) provides that:
The Department or a law enforcement agency employing a peace officer who made an accident report is required to release a copy of the report on request to:
. . . .
(D) a person who provides the Department or the law enforcement agency with two or more of the following:
(i) the date of the accident;
(ii) the name of any person involved in the accident; or
(iii) the specific location of the accident
V.T.C.S. art. 6701d, § 47(b)(1) (emphasis added).
Under this provision, a law enforcement agency employing a peace office who made an accident report "is required to release" a copy of an accident report to a person who provides the law enforcement agency with two or more pieces of information specified by the statute. Id. In the situation at hand, the requestor has provided the department with the date of the accident and the name of a person involved. Accordingly, the DPS report must be released to this requestor. Please note too, that since the DPS report is, under the circumstances, specifically made public by statute, any information therein which would otherwise be protected under sections 552.117 and 552.130 as discussed above, is not protected in the context of the DPS report.
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.
Ref.: ID# 124427
encl. Submitted documents
cc: Ms. L. B. Eisen
1. Although the Seventy-fourth Legislature repealed and codified article 6701d as part of the Transportation Code, the legislature did not intend a substantive change of the law but merely a recodification of existing law. Act of May 1, 1995, 74th Leg., R.S., ch. 165, §§ 24, 25 1995 Tex. Sess. Law Serv. 1025, 1870-71. Furthermore, the Seventy-fourth Legislature, without reference to the repeal and codification of V.T.C.S. article 6701d, amended section 47 of article 6701d, V.T.C.S., relating to the disclosure of accident reports. Act of May 27, 1995, 74th Leg., R.S., ch. 894, § 1, 1995 Tex. Sess. Law Serv. 4413, 4414. Because the repeal of a statute by a code does not affect an amendment of the statute by the same legislature which enacted the code, the amendment is preserved and given effect as part of the code provision. Gov't Code § 311.031(c). Thus, the amendment of section 47 of article 6701d, V.T.C.S. is the existing law regarding the availability of accident report information, and may be found following section 550.065 of the Transportation Code. See also Act of May 27, 1995, 74th Leg., R.S., ch. 894, § 1, 1995 Tex. Sess. Law Serv. 4413, 4414.
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