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August 24, 2000

Mr. Floyd Akers
City Attorney
City of New Braunfels
P. O. Box 311747
New Braunfels, Texas 78131-1747

OR2000-3241

Dear Mr. Akers:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 138280.

The City of New Braunfels (the "city") received a request for twenty-one items of information. You claim that the requested information is excepted from disclosure under sections 552.024, 552.102, 552.103, and 552.117 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted representative samples of information.(2)

Section 552.103(a) excepts from disclosure information relating to litigation to which a governmental body is or may be a party. The governmental body has the burden of providing relevant facts and documents to show that section 552.103(a) is applicable in a particular situation. In order to meet this burden, the governmental body must show that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The governmental body must meet both prongs of this test for information to be excepted under 552.103(a).

However, we note that in this instance, the requestor made its request to the city on June 15, 2000, and filed the civil lawsuit on June 16, 2000. Section 552.103(c) provides that

[i]nformation relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date the requestor applies to the officer for public information for access to or duplication of the information.

Gov't Code 552.103(c). The city did not argue that the city was anticipating a lawsuit on or prior to the date of the request. The city only argues that section 552.103(a) applies to the requested information because of the pending lawsuit as a result of the civil suit filed on June 16, 2000. Because the litigation was not pending, nor do you assert that is was reasonably anticipated on the date the city received the request for information, the submitted information that the city claims is related to the pending lawsuit may not be excepted from public disclosure under section 552.103(a). Accordingly, the city may not withhold the submitted representative samples of information under section 552.103(a).

Next you argue that section 552.102 of the Government Code excepts information responsive to request items 1-6. Section 552.102 excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Gov't Code 552.102(a). In Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd n.r.e.), the court ruled that the test to be applied to information claimed to be protected under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976) for information claimed to be protected under the doctrine of common law privacy as incorporated by section 552.101 of the Act. Common law privacy excepts from disclosure private facts about an individual. Therefore, information must be withheld from the public when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. Id. at 685; Open Records Decision No. 611 at 1 (1992). In Industrial Foundation, the Texas Supreme Court considered intimate and embarrassing 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. 540 S.W.2d at 683; see also Open Records Decision Nos. 470 (concluding that fact that a person broke out in hives as a result of severe emotional distress is excepted by common law privacy), 455 (1987) (concluding that kinds of prescription drugs a person is taking are protected by common law privacy), 422 (1984) (concluding that details of self-inflicted injuries are presumed protected by common law privacy), 343 (1982) (concluding that information regarding drug overdoses, acute alcohol intoxication, obstetrical/gynecological illnesses, convulsions/seizures, or emotional/mental distress is protected by common law privacy). We have marked a sample of the type of information that must be withheld under section 552.101 in conjunction with the common law right to privacy.

Additionally, in Open Records Decision No. 373 (1983), we concluded that personal financial information can generally be considered highly intimate and embarrassing:

In our opinion, all financial information relating to an individual -- including sources of income, salary, mortgage payments, assets, medical and utility bills, social security and veterans benefits, retirement and state assistance benefits, and credit history -- ordinarily satisfies the first requirement of common law privacy, in that it constitutes highly intimate or embarrassing facts about the individual, such that its public disclosure would be highly objectionable to a person of ordinary sensibilities. . . .

However, information regarding a financial transaction between an individual and a governmental body is a matter of legitimate public interest not generally protected from public disclosure by common law privacy. Open Records Decision Nos. 590 at 3 (1991), 523 at 3-4 (1989). For example, the salary of a public employee is not excepted from disclosure. Open Records Decision No. 342 (1982). Further, the doctrine of common law privacy does not generally except from disclosure public employee participation in an insurance program that is funded wholly or partially by his or her employer. Open Records Decision No. 600 at 9 (1992). Of course, personal financial information does not meet the test for common law privacy unless it is also of no legitimate interest to the public. In Open Records Decision No. 373 (1983), we concluded that the determination of whether the public's interest in obtaining highly intimate and embarrassing information is sufficient to justify its disclosure must be made on a case-by-case basis.

It appears that some of the submitted information relates to the city's employees' participation in benefits plans offered by the city. This office has ruled that participation in voluntary plans is a personal financial decision that is protected by section 552.101. See Open Records Decision Nos. 600 (1992) (federal tax Form W-4, Employee's Withholding Allowance Certificate; designation of beneficiary of employee's retirement benefits; direct deposit authorization; and forms allowing employee to allocate pretax compensation to group insurance, health care or dependent care), 545 (1990) (deferred compensation information, mortgage payments, assets, bills, and credit history), 523 (1989). On the other hand, financial information that reflects the employees' mandatory contributions to the city's health plan is not private. Open Records Decision No. 600 (1992). We have marked a sample of the type of information we conclude reflects the city's employees' participation in benefits plans offered by the city. If the employees' participation is voluntary, then the city must withhold this information under section 552.101 and common law privacy. Otherwise, the city must release this information.

We note that box 4 contains a document that is excepted from public disclosure under section 552.101 and section 159.002 of the Occupations Code, known as the Medical Practice Act (the "MPA"). The MPA provides for the confidentiality of medical records under certain circumstances. The MPA provides in relevant part:

(b) A record of the identity, diagnosis, evaluation , or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter.

(c) A person who receives information from a confidential communication or record as described by this chapter . . . may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

Occ. Code 159.002(b), (c). The MPA requires that any subsequent release of medical records be consistent with the purposes for which a governmental body obtained the records. Open Records Decision No. 565 at 7 (1990). Thus, the MPA governs access to medical records. Open Records Decision No. 598 (1991). Moreover, information that is subject to the MPA includes both medical records and information obtained from those medical records. See Occ. Code 159.002(a), (b), (c); Open Records Decision No. 598 (1991). The city may release the medical record we have identified and any other medical records only in accordance with the MPA.

The documents also contain motor vehicle information that is confidential under section 552.130 of the Government Code. Section 552.130 excepts from required public disclosure information that relates to a motor vehicle operator's or driver's license or permit issued by an agency of this state or a motor vehicle title or registration issued by an agency of this state. Therefore, under section 552.130, the department must withhold the marked vehicle identification numbers and any other section 552.130 information that appears in the submitted documents.

Next, we find that the submitted documents contains information that section 552.117 may except from public disclosure. Section 552.117(1) excepts a public employee's home address, home telephone number, or social security number, or information that reveals whether the employee has family members when the public employee requests, under section 552.024, that this information be kept confidential. Therefore, section 552.117(1)requires you to withhold this information of a current or former employee or official who has elected under section 552.024 to keep this information confidential. See Open Records Decision Nos. 622 (1994), 455 (1987). You may not, however, withhold the information of a current or former employee who made the request for confidentiality under section 552.024 after this request for information was made. Whether a particular piece of information is public must be determined at the time the request for it is made. Open Records Decision No. 530 at 5 (1989). Therefore, if the city employees made the proper section 552.024 election prior to the date of this request, then the city must withhold this information pursuant to section 552.117(1). Otherwise, the city must release this information to the requestor.

Additionally, section 552.117(2) provides for the confidentiality of current and former peace officers' home addresses, home telephone numbers, social security numbers, and information that reveals whether the peace officer has family members regardless of whether the peace officer made a section 552.024 election. Therefore, the city must withhold this information that pertains to the city's peace officers which is contained in the documents submitted to this office.

We also note that the submitted documents contain social security numbers. Social security numbers may be withheld in some circumstances under section 552.101 of the Government Code. A social security number or "related record" may be excepted from 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). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are 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. We have no basis for concluding that any of the social security numbers in the records here are confidential under section 405(c)(2)(C)(viii)(I), and therefore excepted from public disclosure on the basis of that federal provision. We caution, however, that section 552.353 of the Public Information Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained pursuant to any provision of law, enacted on or after October 1, 1990.

In summary, the city must withhold information that falls within the purview of section 552.101 and the common law right of privacy. The city must withhold the medical record contained in the submitted documents under the MPA. The city may release the medical records only in accordance with the MPA as discussed above. The city must withhold the section 552.117(1) information, only if the employees made the section 552.024 election prior to the date of this instant request. The city must withhold the section 552.117(2) information regardless of whether the peace officers made a section 552.024 election. The city must withhold the motor vehicle information that appears in the documents under section 552.130. In addition, any social security numbers that are obtained or maintained by the city pursuant to a law enacted on or after October 1, 1990, are confidential. The city may not withhold the submitted information under section 552.103(a). Therefore, the city must release the remainder of the information to the requestor after the redaction of information in accordance with our marked samples.

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,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

NCL/pr

Ref: ID# 138280

Encl. Submitted documents

cc: Stephen P. Allison
Haynes and Boone, L.L.P.
112 East Pecan Street, Suite 1600
San Antonio, Texas 78205-1540
(w/o enclosures)


 

Footnotes

1. You have submitted nineteen boxes of information to this office for review. It appears that the information in many of these boxes is not responsive to the request. It is a governmental body's responsibility to make a good faith effort to relate the request to information in its possession and identify the information responsive to the request. Open Records Decision No. 87 (1975). A governmental body may seek an Attorney General's decision only if the governmental body has a reasonable good faith belief that the requested information may be excepted from disclosure. Open Records Decision No. 665 (1999). Because you have submitted the information as responsive to the request, we will address whether all nineteen boxes are excepted from disclosure.

2. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). Here, we do not address any other requested records to the extent that those records contain substantially different types of information than those submitted to this office.
 

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