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January 25, 2000

Ms. Martha T. Williams
Port of Houston Authority
P.O. Box 2562
Houston, Texas 77252-2562

OR2000-0229

Dear Ms. Williams:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 132207.

The Port of Houston Authority (the "authority") received a request for fourteen categories of information. You indicate that the requestor has been provided access to all existing responsive information except information in category 14. You seek to withhold information responsive to a request for " [a]ny and all documents reflecting the names and reasons for action taken of all terminated, suspended, or probation sentenced PHA employees for the year 1995 thru 1999 (present)." You claim that the requested information is excepted from disclosure under sections 552.101 or 552.102 of the Government Code. You have submitted a representative sample of the information you seek to withhold.(1) The submitted information is redacted to exclude the identities of the subject employees. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Section 552.102 of the Government Code protects "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The protection of section 552.102 is the same as that of the common law right to privacy under section 552.101. Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd n.r.e.). Information may be withheld from the public under the common law right of privacy 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. Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977); Open Records Decision No. 611 at 1 (1992). Common law right of privacy does not protect facts about a public employee's misconduct on the job or complaints made about his performance. See Open Records Decision Nos. 438 (1986), 219 (1978), 230 (1979). However, common-law privacy protects information that reveals drug or alcohol test results of public employees. See Open Records Decision Nos. 594 (1991) (suggesting identification of individual as having tested positive for use of illegal drug may raise privacy issues), 455 at 5 (1987) (citing Shoemaker v. Handel, 619 F. Supp. 1089 (D.N.J. 1985), aff'd, 795 F.2d. 1136 (3rd Cir. 1986). We do not believe that the information you have submitted relating to the termination of an employee, concerning allegations of improper conduct of a sexual nature or improper sexual harassment, may be withheld in this instance. See Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied). This information, including the identity of the terminated employee, must be released in its entirety. The information you have submitted regarding drug test results, however, must be withheld. We have marked the submitted information to indicate that which may be withheld as protected by the common law right of privacy.

Section 552.101 also encompasses information made confidential by statute. You contend that some of the information at issue is protected from disclosure pursuant to provisions of Title I of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. 12101 et seq. The ADA provides that information about the medical conditions and medical histories of applicants or employees must be 1) collected and maintained on separate forms, 2) kept in separate medical files, and 3) treated as a confidential medical record. In addition, information obtained in the course of a "fitness for duty examination," conducted to determine whether an employee is still able to perform the essential functions of his job, is to be treated as a confidential medical record. 29 C.F.R. 1630.14(c). See also Open Records Decision No. 641 (1996). Our review of the submitted documents does not reveal any additional information excepted from disclosure by the ADA, not already shown to be excepted from disclosure by common law privacy, as noted above. If, however information which has not been submitted for our review is a record covered by the ADA, that information must not be released.

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.

Sincerely,

Michael Jay Burns
Assistant Attorney General
Open Records Division

MJB/nc

Ref: ID# 132207

Encl. Marked documents

cc: Mr. I. Scott Green
4805 Paradise Lane
Houston, Texas 77048
(w/o enclosures)


 

Footnotes

1. 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.
 

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