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August 23, 2000

Ms. Lisa Aguilar
Assistant City Attorney
City of Corpus Christi
P.O. Box 9277
Corpus Christi, Texas 78469-9277

OR2000-3230

Dear Ms. Aguilar:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 138667.

The City of Corpus Christi (the "city") received a written request for "information concerning the complaint against me for sexual harassment," including "all written documentation (letters, notes, memos, etc.) that may have been received or generated . . . in the course of your investigation of the complaint." You state that the city has released to the requestor the "Fact Finding Report on Sexual Harassment Allegations," dated June 5, 2000, with the names of the harassment victim and witnesses redacted. You contend that the redacted information and all other documents coming within the ambit of the request are excepted from public disclosure pursuant to section 552.101 of the Government Code in conjunction with the common law right of privacy.

Section 552.101 of the Government Code protects from public disclosure information coming within the common law right of privacy. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976) (common law privacy protects information that is highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and is of no legitimate concern to the public). In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court addressed the applicability of the common law privacy doctrine to files of an investigation of allegations of sexual harassment. The investigatory files at issue in Ellen contained individual witness and victim statements, an affidavit given by the individual accused of the misconduct in response to the allegations, and the conclusions of the board of inquiry that conducted the investigation.

The court held that the names of witnesses and their detailed affidavits regarding allegations of sexual harassment are exactly the types of information specifically excluded from disclosure under the privacy doctrine as described in Industrial Foundation. Ellen, 840 S.W.2d at 525. However, the court ordered the release of the affidavit of the person under investigation. Id. The Ellen court also ordered the disclosure of the summary of the investigation with the identities of the victims and witnesses deleted from the documents, noting that the public interest in the matter was sufficiently served by disclosure of such documents and that in that particular instance "the public [did] not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements." Id.

In this instance, we do not believe that the information regarding the sexual harassment investigation contained in the June 5, 2000 memorandum constitutes an adequate summary of that investigation by itself. Consequently, the city must also release the June 8, 2000 memorandum, with the identity of the victim redacted. Additionally, we conclude that the city must release the handwritten notes taken from the interview of the accused harasser with the victim's and witnesses' identities redacted. However, in accordance with Ellen, the city must withhold all of the remaining information at issue pursuant to section 552.101 of the Government Code in conjunction with the common law right of privacy.

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,

Julie Reagan Watson
Assistant Attorney General
Open Records Division

JRW/RWP/ljp

Ref: ID# 138667

Encl. Submitted documents

cc: Mr. Phillip L. Boehk
Construction Engineer
City of Corpus Christi
P.O. Box 9277
Corpus Christi, Texas 78469-9277
(w/o enclosures)


 

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