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April 26, 2000

Ms. Ruth H. Soucy
Deputy General Counsel
Open Government
Comptroller of Public Accounts
P.O. Box 13528
Austin, Texas 78711-3528

OR2000-1634

Dear Ms. Soucy:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135070.

The Comptroller of Public Accounts (the "comptroller") received a written request for, among other things, all documents that relate to the creation and implementation of the "e-Texas" program and "all offers received by the Comptroller from individuals, groups and businesses offering to contribute money, in-kind gifts and advice to support the e-Texas program."(1) You contend that certain attorney-client communications coming within the ambit of the request are excepted from public disclosure pursuant to the attorney-client privilege, as incorporated into section 552.107(1) of the Government Code. Additionally, you contend that certain information contained in "Notice of Gift" forms is protected by common law privacy as incorporated into section 552.101 of the Government Code.

You first contend that certain e-mail communications between the comptroller's attorneys, a draft document prepared by a comptroller attorney, and a legal memorandum prepared for the comptroller are excepted from public disclosure pursuant to section 552.107(1) of the Government Code. Section 552.107(1) protects information coming within 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 client confidences. Id. We have reviewed the documents for which you claim the attorney-client privilege and agree that the comptroller may withhold these documents in their entirety pursuant to section 552.107(1).

You next contend that certain information contained in comptroller "Notice of Gift" forms is excepted from required public disclosure pursuant to section 552.101 of the Government Code. Under section 403.011(b) of the Government Code, the comptroller may solicit, accept, or refuse gifts on behalf of the state for any public purpose related to the office or duties of the comptroller. One of the criteria the comptroller has established for refusing to accept a gift under section 403.011(b) is that the donor owes past due child support. Accordingly, the "Notice of Gift" form, which is completed by prospective donors, contains the question "Does the donor owe past due child support?" You contend that all responses to this question are protected from public disclosure pursuant to the common law right of privacy as incorporated into section 552.101 of the Government Code.

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.

In this instance, regardless of the fact that an individual owes past due child support may be "highly embarrassing" to that individual, we believe that there is a legitimate public interest in the information at issue and, accordingly, that all responses to the child support query must be released. For example, there is a legitimate public interest in knowing that the comptroller is adhering to its own internal policies by accepting gifts from only those individuals who do not owe past due child support. We also note that the public has a legitimate interest in knowing the reason that a proposed gift to the state has been refused by the comptroller. Consequently, the comptroller must release the question "Does the donor owe past due child support?" and the corresponding responses.

Finally, we note that the "Notice of Gift" forms contain the prospective donor's social security number. This office concluded in Open Records Decision No. 622 at 3 (1994) that amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I), make confidential any social security number obtained or maintained by any "authorized person" pursuant to any provision of law, enacted on or after October 1, 1990, and that any such social security number is therefore excepted from required public disclosure by section 552.101 of the Government Code. Section 403.011(b) of the Government Code was enacted by the 76th Legislature in 1999. See Acts of May 31, 1999, 76th Leg., R.S., ch. 1467, 1.12, 1999 Tex. Gen. Laws 4996, 5003. Consequently, section 403.011(b) is a provision of law enacted after October 1, 1990. Accordingly, all social security numbers that the comptroller obtains or maintains under section 403.011(b) of the Government Code are confidential under the federal Social Security Act and therefore must be withheld from the public in conjunction with section 552.101 of the Government Code.

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,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

NCL/RWP/ljp

Ref: ID# 135070

Encl. Submitted documents

cc: Mr. Andrew Wheat
Texans for Public Justice
609 West 18th Street, Suite E
Austin, Texas 78701
(w/o enclosures)


 

Footnotes

1. You state that other requested information will be made available to the requestor.
 

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