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September 5, 2000

Mr. Paul Sarahan
Director, Litigation Division
Texas Natural Resource Conservation Commission
P.O. Box 13087
Austin, Texas 78711-3087

OR2000-3417

Dear Mr. Sarahan:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 138638.

The Texas Natural Resource Conservation Commission (the "commission") received a request for information relating to certain individuals and business entities. The commission has released a portion of the information that it deems to be responsive to the request. Pursuant to section 552.305 of the Government Code, you have declined to release certain other information relating to one of the individuals, Mr. Alfred L. Smith, for the purpose of seeking this ruling.(1) You believe that the information in question is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you raise and have reviewed the information you submitted.(2)

We initially note that the submitted records include documents that were filed with a court in connection with a bankruptcy case. With respect to such records, section 552.022 of the Government Code provides in relevant part:

(a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:

. . .

(17) information that is also contained in a public court record[.]

Gov't Code 552.022(a)(17). Thus, information that also is a matter of public court record must be released unless other law makes the information in question expressly confidential.

You believe that the submitted records contain personal financial information that is confidential under section 552.101 of the Government Code in conjunction with the common law right of privacy. Section 552.101 excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information that is protected by common law privacy. Gov't Code 552.101; see also Industrial Found. v. Texas Ind. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Information must be withheld from disclosure under section 552.101 in conjunction with common law privacy 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. Industrial Found., 540 S.W.2d at 685. With regard to personal financial information, this office concluded as follows in Open Records Decision No. 373 (1983):

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.

Id. at 3. We further concluded in that same decision that the determination of whether the public's interest in obtaining personal financial information is sufficient to justify its disclosure must be made on a case-by-case basis. Id. at 4. Thus, Open Records Decision No. 373 (1983) distinguishes between confidential background financial information furnished to a governmental body about an individual and the basic facts regarding a particular financial transaction between the individual and the governmental body. See Open Records Decision No. 523 at 4 (1989). In this instance, you indicate that the submitted records relate to the individual's overall financial status and past financial history, rather than to a particular transaction between the individual and the commission. Based on your representations and our review of the records in question, we conclude that the submitted personal financial information, including the records relating to the bankruptcy case, is confidential under section 552.101 in conjunction with common law privacy.

Section 552.101 also protects information that is made confidential by statute. Statutory confidentiality under section 552.101 requires express language providing that certain information is confidential or that it shall not be disclosed to the public. See Open Records Decision No. 478 at 2 (1987). Section 6103(a) of the Internal Revenue Code makes federal tax return information confidential. The term "return information" includes "the nature, source, or amount of income" of a taxpayer. See 26 U.S.C. 6103(b)(2). Federal courts have construed the term "return information" to include any information gathered by the Internal Revenue Service regarding a taxpayer's liability under title 26 of the United States Code. See Mallas v. Kolak, 721 F. Supp 748 (M.D.N.C. 1989). We have marked the records that the commission must withhold under section 552.101 of the Government Code in conjunction with section 6103 of title 26 of the United States Code.

In summary, a portion of the submitted information is confidential under section 552.101 of the Government Code in conjunction with common law privacy. The rest of the submitted information is confidential under section 552.101 in conjunction with section 6103 of the Internal Revenue Code. Therefore, the commission must withhold all of the information in question from public disclosure.

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,

James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ljp

Ref: ID# 138638

Encl. Submitted documents

cc: Mr. John E. Burgess
Georgia -Pacific Corporation
133 Peachtree Street, N.E.
P.O. Box 105605
Atlanta, Georgia 30348-5605
(w/o enclosures)


 

Footnotes

1. Section 552.305 provides in relevant part that "[i]n a case in which information is requested under this chapter and a person's privacy or property interests may be involved, including a case under Section 552.101, 552.104, 552.110, or 552.114, a governmental body may decline to release the information for the purpose of requesting an attorney general decision." Gov't Code 552.305(a).

2. You indicate that you have submitted representative samples of the responsive information that the commission believes to be excepted from disclosure. This letter ruling therefore assumes that the submitted information is truly representative of the responsive information as a whole. This ruling does not reach, and does not authorize the commission to withhold, any responsive information that is substantially different from the information that you submitted to this office. See Gov't Code 552.301(e)(1)(D); Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).
 

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