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February 17, 2000

Mr. Lance Vanzant
Hayes, Coffey & Berry, P.C.
1710 Westminster
P.O. Box 50149
Denton, Texas 76206

OR2000-0600

Dear Mr. Vanzant:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 132250.

The Town of Trophy Club (the "town"), which you represent, received an open records request for several documents, including the personnel file on Ms. Holly Knotts, an employee of the town in the Department of Public Works. You have released most of the requested information. You claim that portions of the personnel file are excepted from disclosure under sections 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 allows public employees to prevent certain pieces of personal information from being released to the public, provided those employees have requested that this information be kept confidential under section 552.024. This information consists of the public employee's home address, home telephone number, social security number, or information revealing whether a public employee has family members. Therefore, section 552.117 requires you to withhold the home address and telephone number, familial information or social security number of a current or former employee or official who has 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 the information of a current or former employee who made the request for confidentiality under section 552.024 after this request for information was 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).

Based upon the document that you have submitted, we agree that Ms. Knotts has elected not to allow public access to her home address, home telephone number, social security number or family member information. Therefore, any information in Ms. Knotts' personnel file that falls within the section 552.117 exception must be redacted. We agree with most of your markings. We have marked and made corrections to the documents from her file that you submitted.

Regarding Exhibit A-3, all exceptions are correct except for the "Emergency Contact Information;" the person named does not qualify as a "family member" under section 552.117. Therefore, that information is public. Additionally, we have marked information in the "Employment History" section of the form that must not be released as it relates to familial relationships. Because it is not information excepted by section 552.117, the address of the subscribing witness, in Exhibit A-8, may not be withheld. Regarding Exhibit A-10, the personal information on Ms. Knotts' resume regarding her marital status and familial information must not be disclosed. However, the telephone numbers of her references, found in Exhibit A-10, are responsive to the request for information in Ms. Knotts' personnel file and must be released.

We note that Exhibits A-7 and A-9 contain information excepted by section 552.130. Section 552.130 of the Government Code excepts information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. Therefore, you must withhold all motor vehicle license information contained in the personnel file. We have marked the information that you must withhold under section 552.130.

You also argue that section 552.102 excepts Ms. Knotts' insurance policy number from public disclosure. 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 Tex. 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 of the Act.

Section 552.101 excepts from disclosure "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 Found. v. Texas Industrial Accident Bd., 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). We agree that Ms. Knotts' automobile insurance policy number is an intimate fact and that this information is not of legitimate concern to the public. Therefore, you may withhold her automobile insurance policy number under section 552.102.

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,

Amanda Crawford
Assistant Attorney General
Open Records Division

AEC/ch

Ref: ID# 132250

Encl. Submitted documents

cc: Ms. Carolyn Jaska
5 Salida
Trophy Club, Texas 76262
(w/o enclosures)


 

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