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July 5, 1999

Mr. Jason C. Marshall
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Lincoln Plaza
500 North Akard
Dallas, Texas 75201

OR99-1749

Dear Mr. Marshall:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 125191.

The City of Sachse (the "city") received requests for information related to attendance by city employees at a particular conference.(1) You seek to withhold telephone numbers and charges associated with calls made from hotel rooms in which city employees were guests. You have submitted responsive information to this office for review, marked to indicate the portion you assert to be excepted from disclosure under sections 552.101 and 552.109 of the Government Code. We assume that you have released all other requested information. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.101 excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. You contend that the subject information is protected by a constitutional right to privacy. The United States Constitution protects two interrelated types of privacy: (1) the right to make certain kinds of decisions independently, and (2) an individual's interest in avoiding disclosure of personal matters. Open Records Decision No. 455 at 4 (1987). The first type protects an individual's autonomy within "zones of privacy" which include matters related to marriage, procreation, contraception, family relationships, and child rearing and education. Id. The second type of constitutional privacy requires a balancing between the individual's privacy interests and the public's need to know information of public concern. Id. The scope of information protected is limited to the "most intimate aspects of human affairs." Id. at 5 (citing Ramie v. City of Hedwig Village, Texas, 765 F.2d 490 (5th Cir. 1985), cert. denied, 474 U.S. 1062 (1986)). The information you have marked is not within the "zones of privacy," nor does it concern the "most intimate aspects of human affairs." Therefore, the information is not protected by a constitutional right of privacy.

We have also considered whether the information is excepted from disclosure under the common-law right of privacy. Information is excepted from disclosure by the common-law right to privacy 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 subject information does not include any "highly intimate or embarrassing facts." It is therefore not protected by the common-law right of privacy. The information is therefore not excepted from disclosure by section 552.101 of the Government Code.

Section 552.109 protects private correspondence and communications of elected office-holders when release of the information "would constitute an invasion of privacy." Decisions under section 552.109 rely on the same tests applicable under section 552.101. See Open Records Decision Nos. 506 (1988), 241 (1980), 212 (1978). This office held that this statute protects the content of communications, rather than the fact that a communication was made. Open Records Decision No. 40 (1974). An itemized list of telephone numbers is not a "communication" within the meaning of this statute. Id. The subject information is therefore not excepted from disclosure by section 552.109 of the Government Code.

Note, however, that governmental bodies must withhold home telephone numbers of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024 of the Government Code. See Open Records Decision Nos. 622 (1994), 455 at 2-3. (1987). A governmental body may not withhold the home telephone number of an official or employee who has not elected to keep this information private at the time the request for the information is received by the governmental body. Open Records Decision No. 530 (1989). Therefore, if any of the numbers called are the home phone numbers of current or former officials or employees who have made the election under section 552.024 to keep their home telephone numbers confidential, you must withhold those telephone numbers.

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.

Sincerely,

Michael Jay Burns
Assistant Attorney General
Open Records Division

MJB/ch

Ref: ID# 125191

Encl. Submitted documents

cc: Ms. Rhonda Dorris
5120 Ben Davis Road
Sachse, Texas 75048
(w/o enclosures)


 

Footnotes

1. The requestor has supplied information that indicates that requests for this information were previously received by the city and not responded to. Where a governmental body fails to request an open records decision from this office within the ten day period required by Government Code section 552.301, a legal presumption arises that the requested information is open to the public. The presumption arising under the 10-day rule can be overcome only by a compelling demonstration that the information should not be released, e.g., where it is made confidential by other law, or where third party interests are at issue. Open Record Decision No. 150 (1977). The city asserts that the information implicates the interests of third parties. We shall therefore address the city's argument.
 

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