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April 10, 2000

Ms. Sarah Blackburn
Assistant City Attorney
City of Midland
P.O. Box 1152
Midland, Texas 79702-1152

OR2000-1388

Dear Ms. Blackburn:

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# 134125.

The City of Midland (the "city") received a request for the requestor's "complete personal file from the Midland Police Department." You have submitted responsive records for our review. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.111 of the Government Code. We have considered the exceptions you claim and have reviewed the information you submitted.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Information may be withheld under section 552.101 in conjunction with the common law right to privacy if the information is highly intimate and embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and if there is no legitimate public interest in its disclosure. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977); see also Open Records Decision No. 611 at 1 (1992). You contend that the disclosure of information about the requestor that was provided to the police department by references and a former employer would violate the privacy rights of the sources of that information. You argue that such information generally is assumed to be confidential and that its disclosure would be highly objectionable to a reasonable person and of no true concern to the public. You also claim that release of the requested records would adversely affect the future acquisition of employment references and recommendations. We considered most of these same contentions in Open Records Decision No. 481 (1987). We specifically held that the release of records relating to an application for employment, including reference letters and information provided by previous employers, would not violate the privacy rights of the parties who submitted that information to the governmental body. Id. at 2; see also Open Records Decision No. 283 (1981) (holding that former Dallas Park Police trainee was entitled to access to her own personnel file, including information submitted by references and former employers). We therefore conclude here that the background investigation forms and former employer questionnaire that the city seeks to withhold are not confidential under section 552.101 in conjunction with common law privacy and must be released to the requestor.

You also claim that internal memoranda relating to the requestor represent discussions of employment policy that are excepted from disclosure under section 552.111 of the Government Code. Section 552.111 excepts from disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." In Open Records Decision No. 615 (1993), this office reexamined the predecessor to the section 552.111 exception in light of the decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ). We concluded that section 552.111 protects only those internal communications that represent advice, recommendations, opinions, and other material reflecting the policymaking processes of the governmental body. See ORD 615 at 5. An agency's policymaking functions do not encompass internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel. Id.; see also City of Garland v. Dallas Morning News, 43 Tex. Sup. Ct. J. 303 (Jan. 13, 2000) (personnel communications not relating to agency's policymaking were not excepted from public disclosure under section 552.111). An agency's policymaking functions do include administrative and personnel matters of broad scope that affect the governmental body's policy mission. See Open Records Decision No. 631 at 3 (1995). The records that you seek to withhold relate exclusively to a single, specific internal personnel matter involving the requestor. Consequently, they are not excepted from disclosure under section 552.111 and must 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,

James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ch

Ref: ID# 134125

Encl. Submitted documents

cc: Ms. Diana Lujan
1208 S. Colorado
Midland, Texas 79701
(w/o enclosures)


 

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