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June 30, 2000

Mr. James L. Hall
Assistant General Counsel
Texas Department of Criminal Justice
P O Box 4004
Huntsville, Texas 77342

OR2000-2474

Dear Mr. Hall:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136468.

The Texas Department of Criminal Justice (the "department") received a request from a former department employee for "all information pertaining to the investigation" that resulted in the resignation of the requestor. You have provided for our review information that is responsive to the request. You assert that this information is excepted from disclosure under sections 552.101, 552.108, and 552.117 of the Government Code. We have considered the exceptions you assert and reviewed the submitted information.

In relevant part, section 552.108 states:

(b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from the requirements of Section 552.021 if:

* * *

(2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication[.]

Gov't Code 552.108 (emphasis added). You cite the above language and state that upon completion of the investigation, "the case was closed and should remain unavailable . . .." However, both your representations and our review of the documents indicate that the investigation pertained to alleged employee misconduct that was non-criminal in nature. We have no indication that this information was used in a matter relating to law enforcement or prosecution. By its very terms, the provision you cite pertains to matters relating to law enforcement or prosecution. We do not believe this provision operates to except from disclosure non-criminal investigations that have concluded in a result other than conviction or deferred adjudication. See Morales v. Ellen, 840 S.W.2d 519, 526 (Tex. App.-El Paso 1992, writ denied) (statutory predecessor to section 552.108 did not apply to an investigation of sexual harassment which did not result in a criminal investigation). Thus, we conclude that the information is not excepted from required disclosure by section 552.108.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. You assert that "the case file includes information about a releasee" of the department which is made confidential by section 508.313 of the Government Code. In pertinent part, section 508.313 states:

(a) All information obtained and maintained, including a victim protest letter or other correspondence, a victim impact statement, a list of inmates eligible for release on parole, and an arrest record of an inmate, is confidential and privileged if the information relates to:

(1) an inmate of the institutional division subject to release on parole, release to mandatory supervision, or executive clemency;

(2) a releasee; or

(3) a person directly identified in any proposed plan of release for an inmate.

We believe that this provision accords confidentiality to the records of the Board of Pardons and Paroles. Open Records Decision No. 190 at 2 (1978); see also Attorney General Opinion H-427 (1974); Open Records Decision No. 33 (1974). You do not represent, nor does the information itself indicate, that the information at issue is contained in the records of the Board of Pardons and Paroles. Rather, the information consists of an Internal Affairs investigation of department employees and appears to be derived from the personnel file of a former department employee. Thus, we conclude that the specific information pertaining to the releasee that is contained in the submitted records is not made confidential in this instance by the above-cited provision.(1)

Finally, you assert section 552.117. Section 552.117(3) applies to employees of the department and provides that the home address, home telephone number, social security number, and information that reveals whether the individual has family members are confidential. Unlike other public employees, a department employee need not affirmatively claim confidentiality for this information. See Gov't Code 552.117(3). Thus, we have marked for redaction the above-described information of those individuals who appear to be current department employees, and we determine that the department must not release this marked information.

Some of the section 552.117 information relates to a former employee of the department.(2) We believe that section 552.117(3) does not apply to a former department employee. However, we additionally note that section 552.117(1) excepts from required public disclosure this information as it relates to a former employee of a governmental body, provided the former employee elected to keep this information confidential in compliance with section 552.024. See Gov't Code 552.117(1), .024; Open Records Decision No. 530 (1989) (employee must make election prior to receipt of public information request). Here, we have no indication of whether the former department employee elected, prior to the department's receipt of the request at issue, to keep her section 552.117 information confidential in compliance with section 552.024. Thus, we can only determine that you must withhold this information of the former department employee pursuant to section 552.117 only if the employee made a proper section 552.024 election. We have marked the information at issue. If the employee did not elect to keep her section 552.117 information confidential in compliance with section 552.024, the marked information relating to the former employee is subject to release, with the possible exception of her social security number which may nevertheless remain confidential.(3)

In summary, pursuant to section 552.117(3), you must redact from the records the specific information we have marked of all current department employees. You must also redact this information of the former department employee who is not the requestor, provided the former employee elected to make the information confidential in compliance with section 552.024. If she did not make a proper section 552.024 election, her social security number may nevertheless be confidential if it was obtained or is maintained by the department pursuant to any provision of law enacted on or after October 1, 1990. The remaining information must be released to the requestor.

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/pr

Ref: ID# 136468

Encl. Submitted documents

cc: Ms. Cecile Redding
512 Circle R Lake
Palestine, Texas 75801
(w/o enclosures)


 

Footnotes

1. Moreover, the specific information pertaining to the releasee that is contained in the submitted records primarily consists of "basic information" that is not made confidential by section 508.313, such as the individual's name, identification number, sentence, and parole date. See Open Records Decision No. 33 (1974) (construing statutory predecessor to section 508.313 and concluding the provision did not make confidential such basic information); see also Gov't Code 552.029.

2. The records contain such information of two former department employees, one of whom is the requestor. Pursuant to section 552.023 of the Government Code, we believe that the requestor has a special right of access to her own section 552.117 information even if this information must not otherwise be publicly released. See Gov't Code 552.023. Thus, in this instance, we have not marked for redaction any of the section 552.117 information of the requestor. We therefore caution that the section 552.117 information of the requestor is not necessarily subject to public release.

3. Federal law may prohibit disclosure of the social security numbers contained in the submitted records. A social security number is excepted from required public disclosure under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I), if it was obtained or is maintained by a governmental body pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 (1994). We note that the federal statute provides that the law requiring the maintenance of the employee's social security number must have been enacted on or after October 1, 1990. In other words, the fact that the social security number was obtained after October 1, 1990, by itself, does not dispose of the issue. We are unable to determine whether any of the social security numbers are confidential under this federal statute. We note, however, that section 552.352 of the Public Information Act imposes criminal penalties for the release of confidential information.


 

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