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October 10, 2000

Mr. John B. Dahill
Advisory Chief
Dallas County
411 Elm Street
Dallas, Texas 75202

OR2000-3901

Dear Mr. Dahill:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 140433.

Dallas County (the "county") received a written request for, among other things, information regarding insurance elections a former county employee made regarding his family. You claim that the requested information is excepted from disclosure under sections 552.101 and 552.117 of the Government Code.

You acknowledge that the county did not request a decision from this office within ten business days of receipt of the records request. Section 552.301(a) of the Government Code requires a governmental body to release requested information or to request a decision from the attorney general within ten business days of receiving a request for information the governmental body wishes to withhold unless there has been a previous determination that the requested information is excepted from required public disclosure. When a governmental body fails to comply with the requirements of section 552.301, the information at issue is presumed public. Gov't Code 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publishing Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The governmental body must show a compelling reason to withhold the information to overcome this presumption. Gov't Code 552.302; see also Hancock, 797 S.W.2d at 381.

A demonstration that information is made confidential by laws outside the Public Information Act (the "act") or that the information comes under the protection of an exception to disclosure intended to protect the privacy interests of an individual constitutes a compelling reason for non-disclosure. See Open Records Decision No. 150 (1977). 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.

This office has previously held that information that reveals an individual's personal financial decisions regarding payroll deductions is excepted from public disclosure. See Open Records Decision No. 545 (1990) (deferred compensation). This office has further held that information revealing public employees' choice of insurance carrier and information revealing whether the employee has chosen optional life, accident, dependent life, or disability income must be withheld from the public pursuant to common law privacy. See Open Records Decision No. 600 at 10 (1992). We have marked the documents you submitted to this office to indicate the information that the county must withhold pursuant to section 552.101 in conjunction with the common law right of privacy.

You also seek to withhold the former employee's home address, home telephone number, social security number, and information about family members pursuant to section 552.117 of the Government Code. You have submitted a form that the employee executed pursuant to section 552.024 in which the employee elected to have his home address and home telephone number withheld from the public pursuant to section 552.117. The documents before us, however, contain no indication that the employee elected to have his social security number or information about family members withheld under this section.(1) Accordingly, we conclude that only the employee's home address and telephone number, including former addresses and telephone numbers, come under the protection of section 552.117 of the Government Code. We have marked this information accordingly. The district attorney must release, however, the employee's social security number and family information to the requestor.

In summary, the county must withhold the insurance election information we have marked pursuant to section 552.101 of the Government Code in conjunction with common law privacy. The only information in the records at issue excepted from public disclosure under section 552.117 is the employee's home address and home telephone information.

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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,

Amanda Crawford
Assistant Attorney General
Open Records Division

AEC/RWP/ljp

Ref: ID# 140433

Encl. Submitted documents

cc: Mr. Paul Jordan
P.O. Box 154248
Irving, Texas 75015-4248
(w/o enclosures)


 

Footnotes

1. Contrary to your assertion, public employees may change their elections under section 552.024 at any time, including upon separation from employment. See Gov't Code 552.024(b)(3), (e).
 

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