Cornyn Open Records Letter Ruling OR99-1945
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John Cornyn
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July 13, 1999

Ms. Elizabeth Lutton
Senior Attorney
City of Arlington
501 West Main Street, MS 03-0100
Arlington, Texas 76010-6869

OR99-1945

Dear Ms. Lutton:

You have asked whether certain information is subject to required public disclosure under the Public Information Act (the "act"), chapter 552 of the Government Code. Your request was assigned ID# 125563.

The City of Arlington (the "city") received a request for "[d]ocuments relating to sexual harassment cases involving city employees from October 1998 to present." In response to the request, you submit to this office for review the information which you assert is responsive.(1) You state that the city will make available to the requestor some responsive information. You contend, however, that the submitted records are excepted from required public disclosure by sections 552.101, 552.102, 552.103, and 552.107 of the Government Code. We have considered the exceptions and arguments you raise, and have reviewed the information submitted.

You claim that Exhibit 2 "contains a sexual harassment investigation which is the subject of a pending claim with the Equal Employment Opportunity Commission. . . . Therefore, the documents should be excepted from release under Section 552.103(a)(1) of the Government Code."(2) Section 552.103(a), the "litigation exception" excepts from disclosure information:

    (1) relating to litigation of a civil or criminal nature or settlement negotiations, to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party; and

    (2) that the attorney general or the attorney of the political subdivision has determined should be withheld from public inspection.

The city has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The city must meet both prongs of this test for information to be excepted under section 552.103(a). Section 552.103 requires concrete evidence that litigation may ensue. To demonstrate that litigation is reasonably anticipated, the city must furnish evidence that litigation is realistically contemplated and is more than mere conjecture. Open Records Decision No. 518 at 5 (1989).

Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party. Open Records Decision No. 555 (1990); see Open Records Decision No. 518 (1989) (litigation must be "realistically contemplated"). On the other hand, this office has determined that if an individual publicly threatens to bring suit against a governmental body, but does not actually take objective steps toward filing suit, litigation is not reasonably anticipated. See Open Records Decision No. 331 (1982). Nor does the mere fact that an individual hires an attorney and alleges damages serve to establish that litigation is reasonably anticipated. Open Records Decision No. 361 (1983). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986).

As for the sexual harassment investigation, submitted as Exhibit 2, the complainant filed an EEOC complaint against the city. The EEOC dismissed the complaint and issued the complainant her right to sue notice. The ninety-day period during which the complainant may bring suit has expired. Under the facts presented and your arguments, we conclude that the city has not met its burden under section 552.103. Therefore, you may not rely on section 552.103 to withhold any of the requested information within Exhibit 2.

You next claim that Exhibits 2, 4, 5 and 6 should be withheld pursuant to 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 common-law and constitutional privacy protections. 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.

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, child rearing and education and are clearly inapplicable 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)).

Section 552.102(a) protects information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, except that all information in the personnel file of an employee of a governmental body is to be made available to that employee or the employee's designated representative as public information is made available under this chapter.

Section 552.102(a) is designed to protect public employees' personal privacy. The scope of section 552.102(a) protection, however, is very narrow. See Open Records Decision No. 336 (1982). See also Attorney General Opinion JM-36 (1983). The test for section 552.102(a) protection is the same as that for information protected by common-law privacy under section 552.101: the information must contain highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and the information must be of no legitimate concern to the public. Hubert v. Harte-Hanks Texas Newspapers, Inc., 652 S.W.2d 546, 550 (Tex. App.--Austin 1983, writ ref'd n.r.e.).

In our opinion none of the submitted information is protected by constitutional privacy. However, we believe that the release of the submitted information, considered under either section 552.101 or section 552.102, is governed by Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied). There, the court addressed the applicability of the common-law privacy doctrine to files of an investigation of allegations of sexual harassment. The investigatory files at issue in Ellen contained individual witness and victim statements, an affidavit given by the individual accused of the misconduct in response to the allegations, and the conclusions of the board of inquiry that conducted the investigation. Id.

The court held that the names of witnesses and their detailed affidavits regarding allegations of sexual harassment was exactly the kind of information specifically excluded from disclosure under the privacy doctrine as described in Industrial Foundation. Id. at 525. However, the court ordered the release of the affidavit of the person under investigation and the summary of the investigation with the identities of the victims and witnesses deleted from the documents, noting that the public interest in the matter was sufficiently served by disclosure of such documents and that in that particular instance "the public [did] not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements." Id. at 525.

Based on the submitted records, we note that two of the sexual harassment investigations contain a summary of the investigation, while two of them do not have a summary. Exhibits 2 and 6 concerning separate sexual harassment investigations each have a summary, however, the sexual harassment investigations submitted as Exhibits 4 and 5 do not contain a summary. Accordingly, as for Exhibits 2 and 6, we conclude that, pursuant to Ellen, the city must release the affidavit of the person under investigation and the summary of the investigation contained in the submitted materials. In accordance with Ellen, victims' and witnesses' identities must be redacted from the affidavits and summaries. As for Exhibits 4 and 5, since the submitted information contains no adequate summary of the sexual harassment complaint investigations and you do not relate that such a summary has been released, the victims' and witnesses' statements may not be withheld under section 552.101. However, based on Ellen, the city must withhold the victim's and the witnesses' identifying information. You must release the remaining information.

We also note that while the court in Ellen did not reach the issue of whether the public employee who was accused of the harassment had any inherent right of privacy to his identity, the court did hold that the public possesses a legitimate interest in full disclosure of the facts surrounding employee discipline in this type of situation. Id. at 525. We believe that there is a legitimate public interest in both the identity of public employees accused of sexual harassment in the workplace and the details of the complaints, regardless of the outcome of the investigation.(3) See 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).

Finally, you contend that Exhibit 7 is excepted from required public disclosure pursuant to section 552.107 of the Government Code. Section 552.107(1) protects from disclosure information that reveals client confidences to an attorney or that reveals the attorney's legal advice, opinion, and recommendation. See Open Records Decision No. 574 (1990). We note that section 552.107 does not provide a blanket exception for all communications between clients and attorneys or all documents created by an attorney. Where an attorney represents a governmental entity, the attorney-client privilege protects an attorney's legal advice and confidential attorney-client communications. Id. Accordingly, these two classes of information are the only information contained in the records at issue that may be withheld pursuant to the attorney-client privilege. However, section 552.107(1) does not protect purely factual information. Id. We have marked the documents, or portions thereof, that the city may withhold from the public pursuant to section 552.107(1). The remaining information is factual information that is not excepted from public disclosure by either section 552.107 and must be released.

Before we conclude our analysis, we note that although you have not raised any other applicable exception, based on the records at issue, we must consider whether some of the submitted information should be excepted from required public disclosure under section 552.117 of the Government Code.(4) Section 552.117 of the Government Code reads in relevant part:

    Information is excepted from the [public disclosure] requirements of Section 552.021 if it is information that relates to the home address, home telephone number, or social security number, or that reveals whether the following person has family members:

      (1) a current or former official or employee of a governmental body, except as otherwise provided by Section 552.024;

      (2) a peace officer as defined by Article 2.12, Code of Criminal Procedure, or a security officer commissioned under Section 51.212, Education Code, regardless of whether the officer complies with Section 552.024;

Section 552.117(1) requires you to withhold information pertaining to a current or former employee or official who requested that this information be kept confidential under section 552.024. Information may not be withheld under 552.117(1) if the current or former employee elected non-disclosure after this request for information was made. Open Records Decision No. 622 (1994). Section 552.117(2) requires you to withhold information pertaining to a peace officer, without regard to that officer's election under section 552.024. Therefore, we conclude that the information subject to section 552.117(2) must be withheld. See Gov't Code 552.352 (distribution of confidential information is criminal offense). We have marked the type of information to indicate the information that is or may be subject to section 552.117.

In conclusion, we note that all of the requested information not specifically addressed above must be released to the requestor in its entirety. 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

Sam Haddad
Assistant Attorney General
Open Records Division

SH/nc

Ref.: ID# 125563

Encl: Submitted information

cc: Ms. Christy Gonzales
Arlington Starr Telegram
1111 West Abram
Arlington, Texas 76013
(w/o enclosures)


 

Footnotes

1. You have also submitted to this office information that apparently was sent for informational purposes only. In this ruling, we do not address the public disclosure of that information.

2. We note that this office has previously addressed certain related matters. In Open Records Letter No. 99-1234 (1999), the city requested a ruling from this office concerning information relating to a particular complaint investigated by the city's human resources department.

3. We note that sexual harassment by public employees may constitute official oppression punishable as a Class A misdemeanor. See Bryson v. State, 807 S.W.2d 742 (Tex. Crim. App. 1991).

4. The Office of the Attorney General will raise an exception on behalf of a governmental body when necessary to protect third-party interests. See generally Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).
 

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