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July 14, 2000

Ms. Judith A. Hunter
Paralegal
City of Georgetown
P.O. Box 408
Georgetown, Texas 78627-0409

OR2000-2652

Dear Ms. Hunter:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137052.

The City of Georgetown (the "city") received a request for the personnel records regarding a specific police officer, including all complaints lodged and disciplinary actions concerning the officer. In addition, the requestor seeks a specific offense report involving the officer. You state that the city has provided the requestor with most of the requested information, but you claim that a portion of the requested personnel records is excepted from disclosure under section 552.101 of the Government Code.(1) We have considered the exception you claim and reviewed the submitted information.

Section 552.101 of the Government Code 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.

While prior decisions of this office have found that financial information relating only to an individual ordinarily satisfies the first requirement of the test for common law privacy, there is a legitimate public interest in the essential facts about a financial transaction between an individual and a governmental body. Open Records Decision Nos. 600 (1992), 545 (1990), 373 (1983). For example, this office has held that an employee's required participation in the Texas Municipal Retirement System or in a group insurance plan funded by the governmental body is not excepted from disclosure under common law privacy. Open Records Decision No. 600 at 9-10 (1992), 480 (1987). On the other hand, we have previously determined that information revealing the designation of beneficiaries of insurance and retirement funds is confidential under the right of privacy. Open Records Decision No. 600 at 10 (1992).

You have submitted financial records from the relevant personnel file which show the employee's monthly deposits into the Texas Retirement System, and estimated benefits according to various options. It is unclear to us whether the monthly contributions made by the employee toward the retirement system were required or optional. Consequently, we are unable to determine whether or not those contributions represent personal financial decisions on the part of the employee. To the extent that the monthly contributions were optional, they represent personal financial decisions and are confidential under common law privacy. Therefore, if the monthly deposits shown on the submitted documents were optional, the city must withhold them under section 552.101. However, if the monthly deposits were required, meaning they were not made pursuant to the employee's choice, then the monthly deposits are not private and the city must release that information. In either event, the portions of the submitted documents showing the estimated benefits do not reflect personal financial decisions and therefore the city must release this information.

We note that the submitted records also indicate whether the employee designated a beneficiary of the retirement funds. We believe that the decision of whether to designate a beneficiary is a personal financial decision that is confidential under common law privacy. Accordingly, the city must withhold this information under section 552.101.

Finally, the submitted records contain the employee's social security number. Section 552.117 of the Government Code excepts from required public disclosure information that reveals a public employee's home address, telephone number, social security number, or whether the public employee has family members, but only if the public employee has requested that this information be kept confidential under section 552.024. See Open Records Decision Nos. 622 (1994), 455 (1987). Moreover, a governmental body may not withhold the information of a current or former employee who made the request for confidentiality under section 552.024 after the request for information was made. Whether a particular piece of information is protected by section 552.117(1) must be determined at the time the request for that information is made. Open Records Decision No. 530 at 5 (1989). Accordingly, if the employee who is the subject of the submitted records made a timely election under section 552.024, the city must withhold the employee's social security number under section 552.117.

Even if the employee did not timely submit an election under section 552.024, the employee's social security number may be confidential nevertheless under section 552.101 in conjunction with federal law. As explained above, section 552.101 excepts from required public disclosure information that is considered confidential by law. Accordingly, section 552.101 encompasses confidentiality provisions such as the 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I). This provision makes confidential social security numbers and related records that have been obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. Therefore, if the social security number contained in the submitted documents meets the criteria of section 405(c)(2)(C)(viii)(I), then it is confidential under this provision as encompassed by section 552.101.

In conclusion, if the monthly deposits shown on the submitted documents were made pursuant to the employee's choice, then the city must withhold the information revealing the amounts of the monthly deposits under section 552.101 in conjunction with common law privacy. If the monthly deposits were not made pursuant to the employee's choice, then the city must release this information. The city must withhold the information showing whether or not the employee designated a beneficiary under section 552.101 in conjunction with common law privacy. If the employee timely submitted an election under section 552.024, then the city must withhold the employee's social security number under section 552.117. Even if the employee did not submit such an election, the city must still withhold the social security number if it meets the requirements of the federal Social Security Act as encompassed by section 552.101. If neither the Social Security Act nor section 552.117 applies to the social security number, then the city must release it. Finally, the city must release the portions of the submitted documents that show estimated retirement benefits.

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,

E. Joanna Fitzgerald
Assistant Attorney General
Open Records Division

EJF\nc

Ref: ID# 137052

Encl: Submitted documents

cc: Ms. Mary Helton
10006 Mandeville Circle
Austin, Texas 78750
(w/o enclosures)


 

Footnotes

1. We assume that the city has provided the requestor with any responsive information in the city's possession which you have not submitted to this office for review. If the city has not done so, it must release such information at this time. See Gov't Code 552.301, 552.302.
 

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