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October 17, 2000

Ms. Phoebe Knauer
Supervising Attorney
Texas Department of Protective
& Regulatory Services
P.O. Box 149030
Austin, Texas 78714-9030

OR2000-4037

Dear Ms. Knauer:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code, the Public Information Act (the "Act"). Your requests were assigned ID#140190 and 141156.

The Texas Department of Protective and Regulatory Services (the "department") has received several requests from the same requestor for a variety of information relating to the provision of child and family services in Rosenberg, Texas, and in Fort Bend County. You have provided some information to the requestor in response to some of his requests; however, you claim that the remaining requested information is excepted from disclosure under sections 552.101 and 552.103 of the Government Code. You ask this office to consider all requests received from this requestor during the ten working days prior to August 14, 2000 together, as well as a new request dated August 22, 2000.(1) We have considered the exceptions you claim and reviewed the submitted representative sample of the requested information.(2)

We first address your assertion that you are not required to create new documents to respond to a request for public information and that you are not required to answer questions. We agree that the Act does not require a governmental body to answer factual questions, conduct legal research, or create new information in response to a request, but a governmental body must make a good faith effort to relate a request to information which it holds. Open Records Decision Nos. 563 (1990), 561 (1990), 555 (1990), 534 (1989). If the detailed mobile telephone and pager information responsive to items 9 and 10 of the July 27, three-page request, does not exist, you are not required to create it. We also direct you to section 552.232 of the Government Code, which provides for responding to repetitious or redundant requests. A governmental body which receives a request for information which it has previously furnished to the requestor or made copies available to the requestor upon payment of applicable charges must respond to the request by certifying to the requestor that it has already made the information available to him. See Gov't Code 552.232(b) (concerning requirements of certification).

You claim that some of the requested information is excepted from required public disclosure by section 552.101 of the Government Code. Information is excepted from disclosure by section 552.101 "if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 261.201 of the Family Code governs release of information related to reports of child abuse or neglect. In pertinent part it reads:

(a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

We agree that the sign-in sheets responsive to item 15 of the July 27, three-page request, consist of reports, records, and working papers used or developed in an investigation made under chapter 261 of the Family Code and would therefore be confidential by statute. In addition, if the telephone and pager records become available, and if, as you say, they contain telephone numbers, of clients and others, used in an investigation or in providing services under chapter 261 of the Family Code, those records are also confidential by statute. As you have not cited any specific rule that the department has adopted with regard to the release of this type of information, these records are presumed confidential in their entirety. See Open Records Decision No. 440 at 2 (1986). Accordingly, the department must not release this requested information.

As to the remaining information, you assert that it is excepted from required public disclosure by section 552.103 of the Government Code. Section 552.103(a), the "litigation exception," excepts from disclosure information relating to litigation to which the state or a political subdivision is or may be a party. To secure the protection of section 552.103(a), a governmental body has the burden of providing relevant facts and documents to 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, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). You inform this office that on February 14, 2000, the department filed a Suit Affecting the Parent Child Relationship (SAPCR) against the requestor, seeking emergency protection for his children. You have provided copies of court-filed documents which establish that litigation initiated by the department is pending. You also assert that criminal prosecution may be forthcoming and a civil lawsuit is anticipated. In addition, the requestor informs this office that he has filed a Motion for Sanctions against the department. Therefore, you have established that litigation is pending and that additional litigation is reasonably anticipated.

Furthermore, it is apparent that the requested information relates to the pending and anticipated litigation. However, we note that if the opposing party in the litigation has seen or had access to any of the information in these records, there is no section 552.103(a) interest in withholding that information from the requestor. Open Records Decision Nos. 349 (1982), 320 (1982). In addition, section 552.103 does not protect from disclosure information subject to mandatory public release pursuant to section 552.022 of the Government Code. Section 552.022 provides in pertinent 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:

(1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108;

(2) the name, sex, ethnicity, salary, title, and dates of employment of each employee and officer of a governmental body;

(3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body;

(4) the name of each official and the final record of voting on all proceedings in a governmental body;

(5) all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate;

. . .

(7) a description of an agency's central and field organizations, including:

(A) the established places at which the public may obtain information, submit information or requests, or obtain decisions;

(B) the employees from whom the public may obtain information, submit information or requests, or obtain decisions;

(C) in the case of a uniformed service, the members from whom the public may obtain information, submit information or requests, or obtain decisions; and

(D) the methods by which the public may obtain information, submit information or requests, or obtain decisions;

(8) a statement of the general course and method by which an agency's functions are channeled and determined, including the nature and requirements of all formal and informal policies and procedures;

(9) a rule of procedure, a description of forms available or the places at which forms may be obtained, and instructions relating to the scope and content of all papers, reports, or examinations;

(10) a substantive rule of general applicability adopted or issued by an agency as authorized by law, and a statement of general policy or interpretation of general applicability formulated and adopted by an agency;

(11) each amendment, revision, or repeal of information described by Subdivisions (7)-(10);

. . .

(14) administrative staff manuals and instructions to staff that affect a member of the public[.]

Gov't Code 552.022(a)(part). Section 552.103 is not other law that makes the requested information confidential. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475, 476 (Tex. App.--Dallas 1999, no pet.) (litigation exception discretionary, governmental body may waive section 552.103 exception). The contracts submitted as responsive to the August 22 request, Requested Items #1, clearly relate to the receipt or expenditure of public funds. The department must release the contracts, with attachments and amendments, under section 552.022(a)(3). Also, several documents responsive to Requested Items #3 consist of account reconciliations and expenditures that must be released under section 552.022(a)(3).

Two pages describing income and expenses for June, 2000 appear to contain names and dates of birth of clients of the department. Section 552.101 of the Government Code also encompasses common law privacy and excepts from disclosure private facts about an individual. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Therefore, information may 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).

Te type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information 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. Industrial Foundation, 540 S.W.2d at 683; see Open Records Decision Nos. 339 (1982), 205 (1978). Additionally, this office has found that the following type of information is excepted from required public disclosure under common law privacy: some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). You must withhold client-identifying information as protected by common law privacy under section 552.101, but must release the remainder of those two pages under section 552.022(a)(3).

The Child Welfare Board Resource Manual must be released in accordance with section 552.022(a)(14). The audit must be released in accordance with section 552.022(a)(1). The proposed budget must be released in accordance with section 552.022(a)(5). Similarly, the names, titles, salaries, dates of employment, and office addresses of each employee and board member must be released in accordance with section 552.022(a)(2), (a)(7). The office phone numbers, if they are available to the public, also may not be withheld under section 552.103.

However, the document containing this information of the board members also contains information which may be excepted from required public disclosure by section 552.117 of the Government Code. Section 552.117(1) excepts from disclosure information that relates to the home addresses, home telephone numbers, social security numbers, and family information of employees of a governmental body who request that this information remain confidential under section 552.024. You have not submitted to this office information that demonstrates that, prior to the date on which the department received the requests for information, the department employees elected to keep their home addresses, home telephone numbers, social security numbers, and family membership confidential. Under section 552.117, you must withhold this information for each employee who made such an election before the request for information was submitted. Under section 552.103, you may withhold this information regardless of employee elections.

Finally, several documents submitted appear to be agenda and minutes of open board of directors meetings. Those items must be released. See Gov't Code 551.022. In summary, the department must withhold the sign-in sheets under section 261.201 of the Family Code. The department must withhold the section 552.117 information of employees who made timely section 552.024 elections. The department must release all information we have identified as within a category of information made public by section 552.022(a). The department may withhold the remaining requested information under section 552.103. We note that the applicability of section 552.103(a) ends once the litigation concludes. Attorney General Opinion MW-575 (1982), Open Records Decision No. 350 (1982). However, if the records contain information that is confidential by law, you must not release such information even at the conclusion of the litigation. Gov't Code 552.101, .352.

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,

Patricia Michels Anderson
Assistant Attorney General
Open Records Division
PMA/pr
Ref: ID#140190, 141156
Encl. Submitted documents


 

Footnotes

1. We find in the submitted documents request letters dated July 26, July 27 (two), July 31, and August 22, 2000, as well as earlier requests not addressed in this ruling.

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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