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June 1, 2000

Ms. Nora Bender
Acting Open Records Coordinator
Texas Department of Mental
Health and Mental Retardation
P.O. Box 12668
Austin, Texas 78711-2668

OR2000-2156

Dear Ms. Bender:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135733.

The Department of Mental Health and Mental Retardation (the "department"), received three written requests for information from Latreese A. Cooke. You indicate that you have released all of the information responsive to two of those requests, and most of the information responsive to the other. However, you seek to withhold certain information which is responsive to that portion of one request which seeks

[a]ny and/or all grievances filed by Central Office support staff (in any capacity) and the outcomes of the investigations and what action, if any was taken by the department (least last five years).

You have supplied the information responsive to this request to this office for review. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.107 of the Government Code. As you have provided no comment in support of the application of Government Code section 552.107, this decision letter is limited to the application of Government Code section 552.101 to the submitted information.

You contend that because certain responsive documents related to investigations into allegations of sexual harassment contain information that is embarrassing to complainants and their coworkers, those documents are excepted from disclosure in their entirety under section 552.101 of the Government Code in conjunction with the common law right of privacy. You have identified these documents as exhibits 1 and 2. Section 552.101 excepts from required public disclosure information that is considered 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 (1) the information contains highly intimate or embarrassing facts about a person's private affairs such that release of the information would be highly objectionable to a reasonable person, and (2) the information is of no 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 Industrial Foundation, Court found that 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 was intimate or embarrassing. Id. This office has also concluded that the fact that an employee broke out in hives as a result of severe emotional distress is excepted by common law privacy. Open Records Decision No. 470 (1987) at 4. We have also found that information regarding drug overdoses, acute alcohol intoxication, obstetrical/gynecological illnesses, convulsions/seizures, or emotional/mental distress is protected by common law privacy Open Records Decision No. 455 (1987).

The court applied the Industrial Foundation doctrine to files of investigations of allegations of sexual harassment in Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied). 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. In concluding, 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. However, the common law right of privacy does not protect facts about a public employee's alleged misconduct on the job or complaints made about his performance, see Open Records Decision Nos. 438 (1986), 230 (1979), 219 (1978). Therefore, the identity of an alleged public employee offender may not generally be withheld. From our review of the submitted materials we have identified what we consider to be adequate summaries of each of the sexual harassment investigations. Since the identities of the complainants and witness in these cases are protected by the common law right of privacy that information must be withheld. In the cases which involve cross complaints, we find that the identities of each of the parties or witnesses in these cases must be withheld. These identities must be redacted and the remainder of the summaries released. Other than the summaries, the submitted information must be withheld. We have marked the documents in comportment with this finding. As this discussion resolves this request, the other exceptions to disclosure raised by you will not be addressed.

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 Jay Burns
Assistant Attorney General
Open Records Division

MJB/nc

Ref: ID# 135733

Encl Submitted documents

cc: Latreese A. Cooke
1134 Tahitian Dr.
Bastrop, Texas 78602
(w/o enclosures)


 

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