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April 10, 2000

Mr. Robert L. Kane
The University of Texas System
Office of General Counsel
201 West Seventh Street
Austin, Texas 78701-2902

OR2000-1404

Dear Mr. Kane:

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# 133839.

The University of Texas at Dallas (the "university") received a written request for five categories of information that may be summarized as follows:

  • Records of all payments made by certain university employees and officers for reimbursement of funds advanced to them "or for their benefit" from January 1, 1996 to the present, including copies of checks written by those employees and records of deposits and related memoranda.
  • Travel authorization and expense reimbursement forms (and related documentation) completed or filed by the university's president for travel to New York, New Jersey, Washington, D.C., and Maryland during a certain time period, as well as records of payment by the university to the president.
  • Travel authorization and expense reimbursement forms (and related documentation) completed or filed by the university's provost for travel to New York, New Jersey, Washington, D.C., New Mexico, and Europe during a certain time period, as well as records of payment by the university to the provost.
  • Records of all deposits to and withdrawals from the "President's Associates Fund" and other university development funds, including records indicating the identity of donors, dates of donations/deposits, and the purposes and dates of the expenditures of such funds, from January 1, 1996 to present.
  • All records documenting the university's objective to model itself after the Massachusetts Institute of Technology.

You state that the requestor is acting on behalf of a university employee who has filed five lawsuits against the university and its employees, among others, and contend that the requested information is therefore excepted from required public disclosure pursuant to section 552.103 of the Government Code.

The test for establishing that section 552.103(a), the "litigation exception," applies to requested information is a two-prong showing that (1) litigation is pending or reasonably anticipated at the time the request for the information is received, and (2) the information at issue is related to that litigation. University of Texas Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin, 1997), Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).

After reviewing the pleadings in the lawsuits and the documents at issue, we conclude that you have met your burden of establishing that litigation regarding these matters was pending on the date the university received the public information request and that the records at issue "relate" to that litigation for purposes of section 552.103. This does not, however, end our discussion as to whether the university may withhold all of the records at issue. Please note that section 552.022(a) of the Government Code provides in pertinent part:

Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:

. . . .

(3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body; [and]

. . . .

(5) all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate.

Gov't Code 552.022(a)(3), (5) (emphasis added). Virtually all of the records you have submitted to this office as responsive to the request are specifically made public under section 552.022(a)(3) and (5). Consequently, such records may not be withheld from the public pursuant to section 552.103, regardless of the fact that they may "relate" to pending litigation. We have marked the documents that appear to fall outside the scope of section 552.022(a) and thus may be withheld pursuant to section 552.103. The university must release all remaining documents to the extent they do not contain confidential information, as discussed below.

Although the attorney general will not ordinarily raise an exception that might apply but that the governmental body has failed to claim, see Open Records Decision No. 325 at 1 (1982), we will raise section 552.101 of the Government Code, which protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," because the release of confidential information could impair the rights of third parties and because the improper release of confidential information constitutes a misdemeanor. See Gov't Code 552.352.

Section 552.101 protects 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. This office has previously held that individuals' personal financial information may be protected by common law privacy. See generally Open Records Decision No. 600 at 9-12 (1992). Some of the records at issue reflect individuals' personal bank account numbers. This type of information is highly intimate and of no legitimate interest to the public. See also Open Records Decision No. 373 (1983). We conclude, therefore, that the university must withhold the bank account numbers pursuant to section 552.101 of the Government Code in conjunction with the common law right of privacy.

We also note that some of the information at issue may be excepted from public disclosure under section 552.117 of the Government Code, which requires that the university withhold, among other things, the home addresses and home telephone numbers of its employees. Accordingly, the university must redact these types of information from the personal checks, but only if the employee had elected to keep this information confidential in accordance with section 552.024 of the Government Code. Assuming the relevant employee made such an election prior to the university's receipt of the records request, we conclude that these types of information must be withheld. See Open Records Decision No. 530 (1989).

In summary, the university may withhold pursuant to section 552.103 only those documents not falling within the scope of section 552.022(a) of the Government Code. For those records that are subject to section 552.022(a), the university must redact (1) the personal bank account number of employees who submitted checks to the university and (2) the home address and telephone number of each employee who has elected for this information to be withheld in accordance with section 552.024 of the Government Code; otherwise, all such documents must be released in their entirety.

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,

E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division

EJF/RWP/nc

Ref.: ID#133839

cc: Mr. S. Michael McColloch
McColl & McColloch
1601 Elm Street, Suite 2000
Dallas, Texas 75201-4718
(w/o enclosures)

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