|Office of the Attorney General - State of Texas
January 21, 2000
Mr. Hugh W. Davis Jr.
Dear Mr. Davis:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131513.
The City of Fort Worth (the "city") received three requests for, among other information, the call detail information from the cellular mobile telephone bills of various elected and appointed officials of the city for a one year period. We assume the city has released the other information responsive to the requests. You have provided for our review exhibits "B1" and "B2," which you explain are responsive to the request at issue and consist of call detail sheets from the Assistant City Manager and the Mayor. You advise the responsive materials are "quite voluminous" and that the exhibits comprise representative samples.(1) You assert that some of the information in the exhibits, which you have marked, is excepted from disclosure under sections 552.108 and 552.117 of the Government Code.(2) We have considered the exceptions you assert and reviewed the submitted information.
We note at the outset that one of the requests (from KXAS-TV) asks specific questions of the city. The Public Information Act does not require a governmental body to prepare answers to questions. See Open Records Decision No. 555 at 1-2 (1990) (considering request for answers to fact questions). Thus, the city is not obligated to prepare answers to the questions. A governmental body must, however, make a good faith effort to relate a request to information which it holds. Open Records Decision No. 561 at 8 (1990). Thus, if the city has information responsive to the questions, the city should advise the requestor of that information and seek clarification of whether the requestor seeks that information. See Gov't Code § 552.222(b); see also Open Records Decision No. 304 (1982) (a governmental body may ask a requestor to clarify a request if the request is unclear).
We additionally caution that this ruling assumes the accounts from which the responsive exhibits are derived are paid with public funds, not with private funds or by individual officials or employees of the city. Further, this ruling assumes the mobile cellular telephones are used to conduct official business of the city. See Open Records Decision Nos. 636 at 2 (1995), 506 at 5 (1988) (different considerations apply to information from cellular telephone accounts not paid with public funds and not used to conduct the official business of the governmental body).
Section 552.108(b) excepts from disclosure "[a]n internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution . . . ." This section excepts from disclosure the internal records and notations of law enforcement agencies and prosecutors when their release would interfere with law enforcement and crime prevention. Gov't Code § 552.108(b)(1); Open Records Decision No. 531 at 2 (1989). When section 552.108(b) is claimed, the agency claiming it must reasonably explain, if the information does not supply the explanation on its face, how releasing the information would interfere with law enforcement. Open Records Decision No. 434 at 3 (1986). Whether disclosure of particular records will interfere with crime prevention must be decided on a case-by-case basis. Attorney General Opinion MW-381 (1981). On exhibit "B2," you have marked for redaction the cellular telephone number of a peace officer. This office has determined that the statutory predecessor to section 552.108(b) excepts from disclosure "the cellular mobile phone numbers assigned to county officials and employees with specific law enforcement responsibilities." Open Records Decision No. 506 at 2 (1988). Relying on an informal open records letter issued in 1986, we stated:
Were the public to have access to the numbers, the purpose of these telephones, which is to ensure immediate access to designated county officials and employees, most of whom have specific law enforcement responsibilities, could easily be defeated.
Id. at 2. Thus, we agree the cellular telephone number of the peace officer may be withheld pursuant to section 552.108(b)(1).
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 that reveals whether that employee or official has family members. Section 552.117 requires you to withhold this information for an official, employee, or former employee who requested that this information be kept confidential under section 552.024. See Open Records Decision Nos. 622 (1994), 455 (1987). You may not, however, withhold this information if the individual had not made a request for confidentiality under section 552.024 at the time the requests at issue were made. Whether a particular piece of information is public must be determined at the time the request for it is made. Open Records Decision No. 530 at 5 (1989). However, such information of peace officers and certain other designated individuals must be withheld under this provision irrespective of whether the peace officer or designated individual made a confidentiality election under section 552.024. See Gov't Code § 552.117.
On exhibit "B2," you have marked for redaction the home telephone number of a city official. Exhibit "C" indicates the official made the section 552.024 election prior to the requests at issue. Hence, we agree that the city official's home telephone number must be withheld under section 552.117. On exhibit "B1," you have marked for redaction certain telephone numbers, and you have made notations on the document indicating the marked numbers are those of family members of a city official. We do not agree that these telephone numbers may be withheld under section 552.117. But for your notations, the information itself does not reveal whether the official has family members. The exceptions to required public disclosure under the Public Information Act are to be construed narrowly, in favor of public disclosure. See Gov't Code §§ 552.001, .006, .007; see also Open Records Decision Nos. 488 (1988) (this office is not at liberty to expand existing exceptions absent clear evidence that the legislature intended such expansion), 506 at 5 (1988) (declining to extend the statutory predecessor to section 552.117 to except from disclosure the cellular mobile telephone numbers of public employees or officials). While we appreciate that an enterprising individual may be able to discover whether a public employee or official has family members by using the information in the submitted exhibits to conduct further independent investigation, this office has determined that such concerns are not adequate reason to withhold information not subject to a specific exception under the Public Information Act.(3) See, e.g., Open Records Decision Nos. 645 at 4 (1996), 478 at 2 (1987), 366 at 3-4 (1983). Thus, except as otherwise noted herein, you must release the information in its entirety.
This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).
If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).
If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).
If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.
Ref: ID# 131513
Encl. Submitted documents
cc: Mr. Brendan Higgins
Ms. Kristin Sullivan
Mr. P.A. Humphrey
1. In reaching our conclusion here, we assume that the representative sample of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988); 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
2. Your correspondence to this office asserts section 552.102 and not section 552.117. 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. You state that you have withdrawn the "constitutional privacy theory" as an exception. Your arguments relate to sections 552.108 and 552.117. We therefore assume you intended to assert section 552.117 and not section 552.102. Cf. Open Records Decision No. 169 (1977) (the home address of public employees is generally not protected by privacy interests).
3. Moreover, this information is not made confidential by constitutional or common law privacy under section 552.101 of the Government Code because the public has a legitimate interest in the information. See Open Records Decision Nos. 636 at 2 (1995); 506 at 3 (1988).
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