|Office of the Attorney General - State of Texas
June 25, 1999
Mr. Saul Pedregon
Dear Mr. Pedregon:
You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 125407.
The Dallas Police Department (the "department") received a request for a copy of all applications for off duty employment submitted by certain police officers during a specific time period. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code.(1) We have considered the exception you claim and have reviewed the submitted information.
Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.102 excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Gov't Code § 552.102(a). In Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd n.r.e.), the court ruled that the test to be applied to information claimed to be protected under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Foundation for information claimed to be protected under the doctrine of common-law privacy as incorporated by section 552.101 of the act. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Therefore, information may be withheld from the public under section 552.102 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). You claim that the submitted documents pertain to financial information which is protected under common-law privacy. After reviewing the documents, we do not believe that they may be withheld based on a right of privacy. See generally Open Records Decision No. 484 (1990) (legitimate public interest in knowing that officer held outside employment). Therefore, the requested information must be released.
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.
June B. Harden
Encl. Submitted documents
cc: Mr. Harold Cornish
1. The department states, and we agree, that it has not sought an open records decision from this office within the statutory ten-day deadline. See Gov't Code § 552.301. The department's delay in this matter results in the presumption that the requested information is public. See id. § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ). In order to overcome the presumption that the requested information is public, a governmental body must provide compelling reasons why the information should not be disclosed. Hancock, 797 S.W.2d at 381. The applicability of section 552.101 provides such a compelling reason.(2)
2. The department asserts that some of the requested information is excepted under the informer's privilege. The informer's privilege is a governmental entity's privilege to withhold from disclosure the identities of those persons who report violations of law. See Roviaro v. United States, 353 U.S. 53, 59 (1957). Thus, the informer's privilege is waivable by a governmental body, and the department has waived the privilege by failing to timely explain the reason why the privilege may have applied in this instance. Open Records Decision No. 549 (1990).
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