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John Cornyn
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March 27, 2000

Mr. D. Craig Wood
Jeffers & Banack
Trinity Plaza II, Suite 900
745 East Mulberry
San Antonio, Texas 78212-3166

OR2000-1182

Dear Mr. Wood:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 133978.

The North East Independent School District (the "district") received a request for cellular telephone bills, reimbursements, and audits for a named individual, as well as seminars attended and travel and entertainment expenses and reimbursements for that individual. You state that you provided the requestor with most of the responsive information, but seek to withhold the cellular telephone records and audit, claiming that portions of the requested information are excepted from disclosure under sections 552.101 and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.(1)

First, we note that the requestor has alerted this office to the existence of a prior ruling which may govern the district's obligation to respond to the request for the cellular telephone billing and payment records at issue here. In Open Records Letter No. 99-3677 (1999), this office was asked to rule only on item 8 of a request which included as item 7 a request for the precise cellular telephone billing information at issue here. In that ruling we recite that:

You state that "[t]he District will provide for inspection the documents requested, if such documents exist, to requests Numbers 1 through 7." The requestor has asked for copies of, rather than access to, the first seven requested items. In addition, the requestor asks that the copies of the requested information be sent by first class mail and agrees to pay for the cost of postage and copying. The requestor may choose whether to inspect or to have access to requested information. See Gov't Code 552.221. A requestor also has the right to require a governmental body to mail public information by first class United States mail if the requestor pays for the postage and all other applicable charges that the requestor has accrued under the Act. See id. 552.221(b). The school district must therefore mail the copies of the requested information to the requestor upon receipt of payment for all costs.

If in fact the copies were mailed or the information was otherwise made available to the previous requestor, that information may not now be withheld from any requestor. Gov't Code 552.223. See Open Records Decision No. 192 (construing the statutory predecessor to section 552.007 of the Government Code to prohibit a governmental body from engaging in selective disclosure). However, if the responsive materials contain confidential information, such confidential information may not be released even if previously mistakenly released.

You claim that some of the requested information is made confidential and therefore excepted from required disclosure under section 552.117. Section 552.117 provides that information may be withheld if it is:

information that relates to the home address, home telephone number, social security number, or that reveals whether the following person has family members:

(1) a current or former official or employee of a governmental body, except as otherwise provided by Section 552.024 [.]

You explain that the named employee elected, as provided by section 552.024, not to allow public access to the information excepted by section 552.117. Presuming that the employee's election under section 552.024 of the Government Code complied with the requirements of that section, the employee's section 552.117 information is confidential and may not be released. We have marked the information that must be withheld pursuant to section 552.117.

You also assert that section 552.101 protects portions of both exhibits from required public disclosure. Section 552.101 encompasses the common law right to privacy. Information may be withheld from the public under the common law right to 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).

You state that the cellular telephone records include the telephone numbers and identities of persons called on personal, rather than employment-related, business. We have examined the information and do not agree that the records contain any information that is intimate and embarrassing on its face. Therefore, no information is excepted from required disclosure by common law privacy. See, e.g., Open Records Decision No. 635 at 9 (1995) (discussing the types of injury or illness information that implicates common law privacy interests). The telephone records must be released with our redactions.

In addition, we note that the internal audit submitted to this office is specifically made public under section 552.022(a)(1) of the Government Code, and is not excepted from required disclosure unless expressly made confidential under other law. We are not aware of any other law making such an audit confidential; therefore, it must be released in its entirety.(2)

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,

Patricia Michels Anderson
Assistant Attorney General
Open Records Division

PMA/jc

Ref: ID# 133978

Encl. Submitted documents

cc: Mr. Edmund Tijerina
San Antonio Express-News
P. O. Box 2171
San Antonio, Texas 75297-2171
(w/o enclosures)


 

Footnotes

1. Your request for a decision identifies one exhibit as a "representative sample" of the cellular telephone log. We assume that a 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). Here, we do not address any other requested records to the extent that those records contain substantially different types of information than those submitted to this office.

2. We refer you to Open Records Decision No. 665 (2000), in which we conclude that the Public Information Act does not authorize a governmental body to seek an attorney general decision if the governmental body reasonably believes that requested information is not within an exception to required public disclosure. Generally, a governmental body will not reasonably believe that information is protected from required disclosure when, for example, the information falls within a category of information expressly made public under section 552.022 [or] the governmental body has intentionally and voluntarily released the precise public information at issue to another requestor who does not have a special right of access[.] ORD 665 at 3 (2000).
 

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