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September 22, 1999

Ms. Linda Wiegman
Supervising Attorney
Office of General Counsel
Texas Department of Health
1100 West 49th Street

Austin, Texas 78756-3199

OR99-2656

Dear Ms. Wiegman:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 128891.

The Department of Health (the "department ") received a request for complaints against the requestor and related information. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code.

Section 552.101 protects information made confidential by statutory or constitutional law or by judicial decision. Section 552.101 incorporates the "informer's privilege," which has been recognized by Texas courts. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969). In Roviaro v. United States, 353 U.S. 53, 59 (1957), the United States Supreme Court explained the rationale that underlies the informer's privilege:

What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. [Citations omitted.] The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. [Emphasis added.]

The "informer's privilege" aspect of section 552.101 protects the identity of persons who report violations of the law. When information does not describe conduct that violates the law, the informer's privilege does not apply. Open Records Decision Nos. 515 (1988), 191 (1978). Although the privilege ordinarily applies to the efforts of law enforcement agencies, it can apply to administrative officials with a duty of enforcing particular laws. Attorney General Opinion MW-575 (1982); Open Records Decision Nos. 285 (1981), 279 (1981); see also Open Records Decision No. 208 (1978). This may include enforcement of quasi-criminal civil laws. Open Records Decision Nos. 515 (1988), 391 (1983). The privilege does not apply ordinarily to employees "reporting" to their employers about the job performance of other employees. See Open Records Decision No. 515. The privilege does not, however, protect the contents of communications if they do not reveal the identity of the informant. Roviaro v. United States, 353 U.S. at 60. Because part of the purpose of the privilege is to prevent retaliation against informants, the privilege does not apply when the informant's identity is known to the individual who is the subject of the complaint. See Open Records Decision No. 208 (1978).

It appears that the requestor, who is the subject of the complaint which you submitted as responsive to the request, has already been apprized of the nature of the complaint and the complainant's identity. He names the complainant in his request. You contend that the individual requestor, nevertheless, cannot necessarily assume that the complaint responsive to his request was made by the same complainant. We believe, however, that as a practical matter, we must assume the requestor knows the complainants identity. Thus, the information at issue may not be withheld under the informer's privilege.

Section 552.101 also protects information coming within the common-law right to privacy. Industrial Found. of the South 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 marked the portions of the submitted information which must be withheld under common-law privacy. The remainder of 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 upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

William Walker
Assistant Attorney General
Open Records Division

WMW/ljp

Ref: ID# 128891

Encl. Submitted documents

cc: Mr. Tony Cobos
Sharp & Cobos, P.C.
Hartland Plaza, Suite 460
1717 West Sixth Street
Austin, Texas 78703
(w/o enclosures)


 

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