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John Cornyn
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May 16, 2000

Ms. Alejandra I. Villarreal
Wickliff & Hall
105 S. St. Mary's Street, Suite 700
San Antonio, Texas 78205

OR2000-1942

Dear Ms. Villarreal:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135265.

The Alamo Community College District (the "district"), which you represent, received two written requests from the same requestor for "all documents or records available commencing September 1, 1999 to February 4, 2000." You indicate the information responsive to the request pertains to the requestor's separation of employment with the district.(1) You acknowledge that the district has failed to timely seek a decision from this office in accordance with the requirements of the Public Information Act. See Gov't Code 552.301(b) (a governmental body must ask for a decision from this office and state the exceptions that apply not later than the tenth business day after the date of receiving the request).(2) You also acknowledge that because the district failed to timely seek a decision from this office in accordance with section 552.301, the information responsive to the request must therefore be released, absent a compelling reason to withhold the information. See Gov't Code 552.302. You contend, however, that the documents you have submitted for our review must be withheld under section 552.101 of the Government Code in conjunction with the common law right of privacy and the decision in Morales v. Ellen, 840 S.W.2d 519 (Tex. App. - El Paso 1992, writ denied).(3)

Section 552.101 excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Section 552.101 encompasses the common law right of privacy. The common law right of 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). The court in Ellen applied the above common law right of privacy test to the records resulting from a workplace sexual harassment investigation. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the public's interest was sufficiently served by the disclosure of such documents. Id. The Ellen court held that "the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id. In its conclusion, the court stated:

The records requested contain highly intimate, embarrassing revelations about persons required to cooperate with an investigation by their employer. These witnesses were never informed of the request that these records be made public; they have, thus, had no opportunity to assert privacy interests on their own behalf. To disclose their names and the details of their statements would send a most unfortunate message to all public employees in Texas: that they complain about sexual harassment in their workplace, or cooperate in the investigation of such a complaint, only at risk of embarrassing and offensive publicity. While this may occasionally be a necessary evil in the enforcement of prohibitions against sexual harassment, we do not believe it is warranted here and decline to order the disclosure of documents which would have such a chilling effect.

Id. at 526 (emphasis added). Unlike the records at issue in Ellen, our review of the submitted information indicates that it contains no "highly intimate, embarrassing revelations." We find no information in the submitted documents that "contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person." Indeed, the investigator indicates that he was unable to substantiate that any sexual harassment had occurred. Thus, we decline to apply the Ellen holding to the information at issue. Moreover, this office has long held that a legitimate public interest exists in information pertaining to the work performance and on-the-job behavior of a public employee, as well as the reasons for a public employee's demotion, dismissal, promotion, or resignation. See, e.g., Open Records Decision Nos. 444 at 4-5 (1986), 405 at 2-3 (1983). Thus, the information submitted for our review is not excepted from required public disclosure by section 552.101 in conjunction with the common law right of privacy, and must be released to the requestor.

We additionally note that the requestor has submitted comments to this office indicating that information responsive to his requests includes "several tape recordings." See Gov't Code 552.304. You have submitted no tape recordings for our review, nor do you represent that the information you have submitted consists of a representative sample of the information that is responsive to the request. See Gov't Code 552.301(e)(1)(D) (a governmental body may submit representative samples to this office if a voluminous amount of information was requested). The media on which public information is recorded includes information on tape. Gov't Code 552.002(b)(4). Moreover, a governmental body has a good faith duty to relate a request to information which it holds. Open Records Decision No. 561 at 8 (1990). We therefore conclude you must also release to the requestor any responsive tape recordings. Because you have not submitted the tape recordings for our review, we are unable to ascertain whether they contain confidential information. We caution that the Act provides for criminal penalties for the improper release of confidential information. See Gov't Code 552.352.

In summary, you must release to the requestor, in its entirety, the information that is responsive to the requests.

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 Garbarino
Assistant Attorney General
Open Records Division

MG/ljp

Ref: ID# 135265

Encl. Submitted documents

cc: Mr. Kevin Palmer
211 Carle
San Antonio, Texas 78204
(w/o enclosures)


 

Footnotes

1. Each written request was made in the context of a grievance request form from the requestor following his separation from employment.

2. The requests were received by the district on February 11, 2000 and March 3, 2000. The request letter to this office was postmarked March 13, 2000, and thus was not timely with respect to the first written request. See Gov't Code 552.308(a)(1).

3. This office has long held that the protection of the privacy interests of third parties, including the common law right of privacy, constitutes a compelling reason for withholding information from the public. See, e.g., Open Records Decision Nos. 150 (1977), 71 (1975).
 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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