Click for home page Office of the Attorney General - State of Texas
John Cornyn

May 20, 1999

Ms. Jennifer D. Soldano
Associate General Counsel
Texas Department of Transportation
125 E. 11th Street
Austin, Texas 78701-2483


Dear Ms. Soldano:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 124177.

The Texas Department of Transportation (the "department") received a request for documents pertaining to complaints and disciplinary action taken against the requestor. You have released the requestor's statement and the disciplinary documentation to the requestor. You claim that the remaining documents are excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted sample of documents.(1)

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." The common-law right of privacy is incorporated into the Public Information Act by section 552.101. For information to be protected by common-law privacy it must meet the criteria set out in Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The Industrial Foundation court held 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. 540 S.W.2d at 685.

In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court addressed the applicability of the right of common-law privacy to files of an investigation of allegations of sexual harassment. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the public's interest was sufficiently served by the disclosure of such documents. Id. In concluding, the Ellen court held that "the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id.

Because the submitted information contains no adequate summary of the sexual harassment complaint investigation and you do not relate that such a summary has been released, the victim's and witnesses' statements may not be withheld under section 552.101. However, based on Ellen, the department must withhold the victim's and the witnesses' identifying information. You must release the remaining information.

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 on as a previous determination regarding any other records. If you have any questions regarding this ruling, please contact our office.


Yen-Ha Le
Assistant Attorney General
Open Records Division


Ref.: ID# 124177

encl.: Submitted documents

cc: Mr. Martin L. Brown
3517 North Hills Drive, #BB101
Austin, Texas 78731
(w/o enclosures)



1. In reaching our conclusion here, we assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer

Home | ORLs