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John Cornyn
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May 11, 2000

Mr. Isaac Brown, III
Bickerstaff, Heath, Smiley, Pollan,
Kever & McDaniel, L.L.P
1700 Frost Bank Plaza
816 Congress Avenue
Austin, Texas 78701-2443

OR2000-1854

Dear Mr. Brown:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135080.

The City of Weatherford (the "city"), which you represent, received a request for the personnel files of two city police officers. You claim that portions of the requested information are excepted from disclosure under sections 552 101, 552.102, and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

We note that the request for information was submitted on the letterhead of a governmental body which is also subject to the Public Information Act. Information may be transferred between governmental agencies which are subject to the Public Information Act and have a related administrative aim without destroying the confidential nature of the information. Attorney General Opinion JM-590 (1986); Open Records Decision Nos. 655 (1997), 567 (1990), 561 (1990), 516 (1989). These decisions are based on the well settled policy of the state that state agencies should cooperate with each other in the interest of the efficient and economical administration of their statutory duties. See Open Records Decision No. 516 (1989). Release to a state agency is not a release to the public for purposes of Government Code section 552.007, which prohibits the selective disclosure of information, or Government Code section 552.352, which provides criminal penalties for the release of information considered to be confidential. See id. If you determine that the request was made in an official capacity by a governmental body with which you share a related administrative aim, you may transfer the requested information to this requestor without waiving the city's ability to raise its discretionary exceptions in the future or violating the Public Information Act's prohibition against release of confidential information.

Alternatively, if you determine that this request was made pursuant to Chapter 552 of the Government Code, i.e. as a request for release to the public, release of the responsive information to this requestor must comply with the discussion below.

You argue that portions of the submitted information are excepted from public disclosure by sections 552.101 and 552.102 of the Government Code. Section 552.101 excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision, and encompasses the common law right to privacy. Section 552.102(a) of the Government Code protects "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The protection of section 552.102(a) is the same as that of the common law right to privacy under section 552.101. Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd n.r.e.). The common law right to privacy protects information 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. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). In Industrial Foundation, the Texas Supreme Court considered intimate and embarrassing information such as that relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. 540 S.W.2d at 683; see also, Open Records Decision Nos. 470 (concluding that fact that a person broke out in hives as a result of severe emotional distress is excepted by common law privacy), 455 (1987) (concluding that kinds of prescription drugs a person is taking are protected by common law privacy), 422 (1984) (concluding that details of self-inflicted injuries are presumed protected by common law privacy) 343 (1982) (concluding that information regarding drug overdoses, acute alcohol intoxication, obstetrical/gynecological illnesses, convulsions/seizures, or emotional/mental distress is protected by common law privacy). Financial information concerning an individual is in some cases protected by a common law right of privacy. See Open Records Decision Nos. 600, 545 (1990), 523 (1989). A previous opinion of this office held that "all financial information relating to an individual . . . ordinarily satisfies the first requirement of common law privacy, in that it constitutes highly intimate or embarrassing facts about the individual, such that its public disclosure would be highly objectionable to a person of ordinary sensibilities." Open Records Decision No. 373 at 3 (1983). The case of public employees, however, presents special considerations. Information regarding a financial transaction between a person and a governmental body is a matter of legitimate public interest; thus the second prong of the Industrial Foundation test is not met and the doctrine of common-law privacy does not protect this information from disclosure. Open Records Decision No. 385 at 2 (1983).

Examples of financial transactions considered to be between the person and the governmental body include: a donation to a public institution, Open Records Decision No. 590 (1991); a debt owed to a public hospital, Open Records Decision No. 385 (1983); and a public employee's participation in an insurance program funded wholly or partially by his employer. Open Records Decision No. 600 (1992). However, a public employee's participation in a voluntary investment program or deferred compensation plan that is not funded by the governmental body is not considered a financial transaction between the individual and the governmental body; as this type of information meets both prongs of the Industrial Foundation test, it is considered confidential and is excepted from public disclosure. Open Records Decision No. 545 (1990). This office has also recognized that information revealing a public employee's affiliation with certain organizations may be protected by rights of association. Open Records Decision No. 212 (1978). In this case, we consider information about salaries in past private sector jobs; insurance coverage not funded by the city; home ownership; credit history; total indebtedness; deferred compensation; car payments; the names and addresses of banks in which the officers have checking accounts; certain past and present medical conditions; as well as past and present affiliations with political, religious, or other associations, must be withheld under section 552.101 of the Government Code.

However, we do not consider fingerprints or academic transcripts to be the type of information protected by common law privacy. You cite no authority in support of a contention that fingerprints are "highly intimate or embarrassing," nor do we believe this to be the case. Therefore, we conclude that the submitted fingerprints are not excepted from required public disclosure under the doctrine of common law privacy. We also note that the legislature addressed the confidentiality of public employees' college transcripts in section 552.102(b) of the Government Code. Such transcripts are excepted from disclosure by this statute if they are contained in the personnel file of a professional public school employee. The legislature did not extend this protection to the class of employees at issue in the current request. Also, this office has held that the public has a legitimate interest in the job qualifications, including college transcripts, of public employees. See Open Records Decision Nos. 470 (1987); 467 (1987). We conclude that the submitted transcript information, including notations of grade averages, as well as the submitted fingerprints are not excepted from disclosure by section 552.101 or 552.102 of the Government Code.

Section 552.101 of the Government Code also encompasses information protected by other statutes. Title 26 section 6103(a) of the United States Code renders tax return information confidential. The term "return information" includes "the nature, source, or amount of income" of a taxpayer. 26 U.S.C. 6103(b)(2). This term has been interpreted by federal courts to include any information gathered by the Internal Revenue Service regarding a taxpayer's liability under title 26 of the United States Code. Mallas v. Kolak, 721 F. Supp 748 (.M.D.N.C. 1989). Our office has held that data collected by the Internal Revenue Service regarding a taxpayer's liability, including W4 forms, must be withheld. Open Records Decision No. 600 at 9 (1992). Therefore the submitted W4 forms must be withheld under section 552.101 of the Government Code in conjunction with Title 26 section 6103(a) of the United States Code.

Section 552.117(2) of the Government Code requires you to withhold information that relates to a peace officer's home address, home telephone number, social security number, or reveals whether the peace officer has family members. All such information must be withheld.

Additionally the submitted documents include information excepted under section 552.130 of the Government Code. This section governs the release and use of information obtained from motor vehicle records, and provides in relevant part as follows:

(a) Information is excepted from [required public disclosure] if the information relates to:

(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state; [or]

(2) a motor vehicle title or registration issued by an agency of this state[.]

You must withhold Texas driver's license numbers, VIN numbers, and Texas license plate numbers pursuant to section 552.130.

We note that you have highlighted the information which you contend is excepted from disclosure. We agree with many of your markings, however we have marked the submitted information where necessary to clarify the information to be withheld and released pursuant to the above discussion.

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,

Michael J. Burns
Assistant Attorney General
Open Records Division

MJB\nc

Ref: ID# 135080

Encl: Submitted documents

cc: Gary Plugge
1320 Airport Road
Aledo, Texas 76008
(w/o enclosures)


 

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