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October 25, 1999

Mr. James A. Hernandez
Mayor, Day, Caldwell & Keeton, L.L.P.
700 Louisiana, Suite 1900
Houston, Texas 77002-2778

OR99-3018

Dear Mr. Hernandez:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 128330.

The Harris County-Houston Sports Authority (the "authority"), which you represent, received a request for certain payroll information regarding employees of Grinnell Fire Protection Systems Co. ("Grinnell"). You explain that Grinnell is a subcontractor of the Brown & Root Building Company, with whom the authority contracted with respect to the construction of a ballpark. You claim that the addresses and social security numbers of Grinnell's employees are excepted from disclosure under sections 552.101, 552.102, and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.117 of the Government Code excepts from public disclosure information relating to the home address, home telephone number, and social security number of a current or former government employee or official, as well as information revealing whether the employee or officials has family members when the public employee requests that this information be kept confidential under section 552.024. Therefore, section 552.117 requires the authority to withhold the specified information of a current or former employee or official who requested that this information be kept confidential under section 552.024. See Open Records Decision Nos. 622 (1994), 455 (1987). This section, by its terms, does not apply to anyone but current or former government employees or officials. See, e.g., Open Records Decision No. 455 (1987) (section 552.117 does not apply to applicants). Because you inform us that Grinnell's employees are not employed by the authority, you may not withhold the addresses and social security numbers under section 552.117 of the Government Code.

You also argue that section 552.102 protects the addresses and social security numbers of Grinnell's employees. 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). However, this provision concerns information in the personnel file of an employee of a governmental body. Because Grinnell's employees are not employees of the authority, section 552.102 is not applicable.

Moreover, privacy does not protect the names, home addresses, and social security numbers from required public disclosure. Section 552.101 excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." For information to be protected from public disclosure under the common-law right of privacy, the information 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 court stated that

information . . . is excepted from mandatory disclosure under Section 3(a)(1) as information deemed confidential by law 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.

540 S.W.2d at 685; Open Records Decision No. 142 at 4 (1976) (construing statutory predecessor to Gov't Code 552.101). This office has previously concluded that home addresses are not "intimate" information, and are therefore not protected as to private citizens, Open Records Decision Nos. 478 (1987), 455 (1987), 254 (1980), nor are social security numbers protected by common-law privacy. See Open Records Decision No. 169 at 7-8 (1977).

However, federal law may prohibit disclosure of the employees' social security numbers. A social security number is excepted from required public disclosure under section 552.101 of the act in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I), if it was obtained or is maintained by a governmental body pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 (1994). Although you allege that the legislation authorizing the creation of the authority was enacted in 1997, you do not argue that this legislation authorized the governmental body to obtain or maintain the employee's social security number. Therefore, we are unable to determine whether the social security numbers are confidential under this federal statute. We note, however, that section 552.352 of the Public Information Act imposes criminal penalties for the release of confidential 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 upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Yen-Ha Le
Assistant Attorney General
Open Records Division

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Ref: ID# 128330

Encl: Submitted documents

cc: Mr. Terry R. Zahn
President/Organizer
Road Sprinkler Fitters Local Union No. 669
7050 Oakland Mills Road, Suite 200
Columbia, Maryland 21046
(w/o enclosures)


 

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