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January 27, 2000

Mr. Therold I. Farmer
Attorney for West ISD
Walsh, Anderson, Brown, Schulze & Aldridge, P.C.
P.O. Box 2156
Austin, Texas 78768

OR2000-0291

Dear Mr. Farmer:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131605.

The West Independent School District (the "district"), which you represent, received a request for information relating to an athletic activity fund investigation and audit. You advise that the district is in possession of an attorney's letter to the board of trustees and an audit report which are responsive to the request. You seek to withhold this information under sections 552.101, 552.102, 552.103, 552.106, 552.107, 552.111, and 552.131 of the Government Code.

We note at the outset that we believe that section 552.022(a)(1) of the Public Information Act mandates the release of the submitted audit report. That provision requires release of a "completed report, evaluation, or investigation made of, for, or by a governmental body" unless "expressly confidential under other law," or except as provided by section 552.108. You did not invoke the protection of section 552.108 for the submitted information. Nor, as we will explain below in addressing the remaining information at issue, is the report otherwise made confidential by law. Therefore, you must release the submitted audit report.

Section 552.101 protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information coming within the common law right to privacy. 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.

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 Tex. Newspapers, Inc., 652 S.W.2d 546, 550 (Tex. App.--Austin 1983, writ ref'd n.r.e.).

Having reviewed the submitted information, it is our opinion that none of the information is protected by common law privacy. There is a legitimate public interest in the job-related activities of public employees, such that information pertaining thereto is generally not protected by common law privacy. See Open Records Decision No. 444 (1986). Therefore, the submitted information may not be withheld under the privacy aspect of section 552.101 or under section 552.102.

Section 552.101 also protects information made confidential by statute or by constitutional provision. You contend that portions of the submitted information are, in effect, employee performance evaluations by the district which are made confidential by section 21.355 of the Education Code, which provides that "[a] document evaluating the performance of a teacher or administrator is confidential." In our opinion, none of the submitted information constitutes "evaluations" such as to be subject to section 21.355.

You also express concern that the release of the requested information would violate the liberty interests of the former district employee under the Fourteenth Amendment of the United States Constitution. We note, however, that

[t]o establish a liberty interest, an employee must demonstrate that his governmental employer has brought false charges against him that might seriously damage his standing and associations in his community, or that impose a stigma or other disability that forecloses freedom to take advantage of other employment opportunities. Board of Regents v. Roth, 408 U.S. 564 (1972).

Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 256 (5th Cir. 1984) (emphasis added; parallel citations omitted). We do not believe the requested information itself reflects "false charges" by the district as contemplated in the referenced court decisions. Consequently, the release of this information would not implicate the Fourteenth Amendment interests of the individuals in question. None of the information may be withheld on this basis.

Section 552.107(1) protects information "that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Civil Evidence, the Texas Rules of Criminal Evidence, or the Texas Disciplinary Rules of Professional Conduct." This exception incorporates the attorney-client privilege. See Open Records Decision No. 574 (1990). In instances where an attorney represents a governmental entity, the attorney-client privilege protects only 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. Having reviewed the attorney's letter which you submitted, we conclude that it may be withheld in its entirety under section 552.107(1).

Section 552.107(1) is not a confidentiality provision, however. It may be waived by the governmental body. See Open Records Decision No. 630 (1994). Therefore, it may not serve to protect the submitted audit report, which, as discussed above, is the kind of information specifically made public by section 552.022(a)(1) absent a showing that it is protected by section 552.108 (which showing you have not made here) or otherwise made confidential by law.(1)

Nor are sections 552.103, 552.106, and 552.111, under which you also claim exceptions, confidentiality provisions. See, e.g., Open Records Decision No. 473 (1987). They may not serve to protect the submitted audit report.

Section 552.131, as added in 1999 by House Bill 211, 76th Legislature, provides:

(a) "Informer" means a student or former student or an employee or former employee of a school district who has furnished a report of another person's or persons' possible violation of criminal, civil, or regulatory law to the school district or the proper regulatory enforcement authority.

(b) An informer's name or information that would substantially reveal the identity of an informer is excepted from the requirements of Section 552.021.

(c) Subsection (b) does not apply:

(1) if the informer is a student or former student, and the student or former student, or the legal guardian, or spouse of the student or former student consents to disclosure of the student's or former student's name; or

(2) if the informer is an employee or former employee who consents to disclosure of the employee's or former employee's name; or

(3) if the informer planned, initiated, or participated in the possible violation.

(d) Information excepted under Subsection (b) may be made available to a law enforcement agency or prosecutor for official purposes of the agency or prosecutor upon proper request made in compliance with applicable law and procedure.

(e) This section does not infringe on or impair the confidentiality of information considered to be confidential by law, whether it be constitutional, statutory, or by judicial decision, including information excepted from the requirements of Section 552.021.

In our opinion, you have not established that any of the employees identified in the submitted information "furnished a report of another person's or persons' possible violation of criminal, civil, or regulatory law to the school district" within the meaning of section 552.131(a). Therefore, none of the submitted information may be withheld under that provision.(2) The audit report must be released. You may withhold the attorney's letter under section 552.107(1).

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,

William Walker
Assistant Attorney General
Open Records Division

WMW/ljp

Ref: ID# 131605

Encl. Submitted documents

cc: Mr. Jerry Mazanec
1006 S. Marable
West, Texas 76691
(w/o enclosures)


 

Footnotes

1. We understand you also to claim that the attorney client privilege is incorporated in section 552.101. We need not address this claim here except to note that, as discussed above, the attorney-client privilege does not make information confidential for purposes of section 552.022.

Also, we note that you appear to claim, in the context of your argument under section 552.107(1), that the audit report may be withheld as attorney work product. This office treats attorney work product as an aspect of the coverage of the exceptions to disclosure set out in sections 552.103 and 552.111 of the Government Code. Attorney work product may be withheld under section 552.103 if it was prepared for pending litigation or anticipation of litigation. Such material may be withheld under section 552.111 if it was prepared for or in anticipation of litigation which is currently no longer pending or anticipated See National Tank Co. v. Brotherton, 851 S.W.2d 193 (Tex. 1993); Open Records Decision No. 647 (1996). The exceptions to disclosure for attorney work product are not, however, confidentiality provisions. See, e.g., Open Records Decision No. 473 (1987) (predecessor provisions to sections 552.103 and 552.111 are not confidentiality provisions but may be waived by governmental body). Therefore, they may not serve to protect information specifically made public under section 552.022 such as the audit report here.

2. We understand you to also raise the informer's privilege under section 552.101. In establishing the informer's privilege under section 552.101, a governmental body must show that the person whose identity is sought to be protected reported conduct which he believed might be unlawful. See, Roviaro v. United States, 353 U.S. 53 (1957). Therefore, you may not withhold any information under the informer's privilege aspect of section 552.101.
 

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