|Office of the Attorney General - State of Texas
October 24, 2000
Ms. Doanh "Zone" Nguyen
Dear Ms. Nguyen:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 140430.
The Metropolitan Transit Authority of Houston ("METRO") received several requests from the same requestor for citizen complaint records and METRO and police department personnel files for seven named officers. The requests seek this information for varying time periods, from two to eight years. You do not indicate whether you have released any of the requested information but claim that portions of the requested information are excepted from disclosure under sections 552.101 and 552.117 of the Government Code.(1) We have considered the exceptions you claim and reviewed the submitted representative sample of the requested information.(2)
We first note that you have provided copies of the requests for information, stamped "Received" on June 7, June 23, August 1, and August 7, 2000. This office received your request for a decision on August 21, 2000. That request was postmarked August 17, 2000. Section 552.301 of the Government Code provides that a governmental body must ask the attorney general for a decision as to whether requested documents must be disclosed not later than the tenth business day after the date of receiving the written request. METRO did not meet its ten-day deadline for requesting a decision from this office as to the first three requests.
Pursuant to section 552.302 of the Government Code, a governmental body's failure to comply with section 552.301 results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code § 552.302); Open Records Decision No. 319 (1982). Here, the applicability of sections 552.101 and 552.117 of the Government Code present compelling reasons to overcome the presumption of openness.
You seek to withhold under section 552.117 "certain addresses, telephone numbers, social security numbers and personal family information of police officers." Section 552.117 provides in relevant part:
Information is excepted from the [public disclosure] requirements of Section 552.021 if it is information that relates to the home address, home telephone number, or social security number, or that reveals whether the following person has family members:
. . .
(2) a peace officer as defined by Article 2.12, Code of Criminal Procedure, or a security officer commissioned under Section 51.212, Education Code, regardless of whether the officer complies with Section 552.024[.]
Section 552.117(2) requires you to withhold information pertaining to a peace officer, without regard to that officer's election under section 552.024. Therefore, you must redact all home addresses, home telephone numbers, and social security numbers of police officers, and information that reveals whether the officers have family members. We have marked the information you must withhold from the submitted documents under section 552.117(2).
You also seek to withhold "confidential information regarding complainants," including "names, addresses, telephone numbers, driver's license numbers and photographs of complainants." We understand you to be asserting that this information should be withheld under section 552.101 of the Government Code, based on common law privacy. Section 552.101 protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information protected by the common law right of privacy. The doctrine of 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 the public has no legitimate interest in it. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). We do not find any of the submitted information relating to complainants to be intimate or embarrassing. Therefore, you may not withhold any complainant information under section 552.101. You specifically seek to withhold the driver's license numbers of complainants. We do not find any complainant driver's license information in the submitted documents; however, the submitted information does contain driver's license information of police officers, which is discussed below.
In addition, the submitted information contains some medical and financial information of police officers that may be protected by section 552.101 and common law privacy. This office has determined that some personal financial information is highly intimate or embarrassing and thus meets the first part of the Industrial Foundation test. Open Records Decision Nos. 600 (1992) (personal financial choices concerning insurance are generally confidential), 545 (1990) (common law privacy protects personal financial information not relating to the financial transaction between an individual and a governmental body), 523 (1989) (common law privacy protects credit reports, financial statements, and other personal financial information), 373 (1983) (common law privacy protects assets and income source information). We find that the medical information contained in the submitted information is not so intimate and embarrassing as to be protected from public disclosure under section 552.101; however, some of the personal financial information may be excepted from disclosure under common law privacy pursuant to section 552.101 of the Government Code. To the extent that payroll deductions, for instance, are mandatory, the information must be released. However, if an employee has voluntarily chosen to have certain amounts deducted from his or her paycheck, this information is protected from disclosure based on a right of privacy. Therefore, METRO must redact the personal financial information we recognize as personal financial information and have marked, such as individuals' bank account numbers, and must redact evidence of voluntary payroll deductions.
Further, the submitted information contains declarations of psychological and emotional health and medical condition from the Texas Commission on Law Enforcement Officer Standards and Education. Section 1701.306 of the Occupations Code provides as follows:
(a) The commission may not issue a license to a person as an officer or county jailer unless the person is examined by:
(1) a licensed psychologist or by a psychiatrist who declares in writing that the person is in satisfactory psychological and emotional health to serve as the type of officer for which a license is sought; and
(2) a licensed physician who declares in writing that the person does not show any trace of drug dependency or illegal drug use after a physical examination, blood test, or other medical test.
(b) An agency hiring a person for whom a license as an officer or county jailer is sought shall select the examining physician and the examining psychologist or psychiatrist. The agency shall prepare a report of each declaration required by Subsection (a) and shall maintain a copy of the report on file in a format readily accessible to the commission. A declaration is not public information.
We have marked the information that must not be released pursuant to section 1701.306 of the Occupations Code.
We note that the submitted information also contains information that is excepted from disclosure under section 552.130 of the Government Code. Section 552.130 governs the release and use of motor vehicle record information and provides in relevant part:
(a) Information is excepted from [required public disclosure] if the information relates to:
(1) a motor vehicle operator's or driver's license or permit issued by an agency of this state;
(2) a motor vehicle title or registration issued by an agency of this state; or
(3) a personal identification document issued by an agency of this state or a local agency authorized to issue an identification document.
Gov't Code § 552.130(a). Thus, METRO must withhold from the submitted information photocopies of Texas driver's licenses, Texas driver's license numbers, and other Texas driver's license information we have marked.
In summary, METRO must withhold peace officers' section 552.117 information. METRO must withhold Texas driver's license information under section 552.130. METRO must withhold the personal financial information we have marked and any voluntary payroll deduction information under section 552.101. METRO must withhold the information we have marked under section 552.101 in conjunction with section 1701.306 of the Occupations Code. METRO must release the remaining requested 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.
Patricia Michels Anderson
Encl. Submitted documents
cc: Mr. Barry Rosette
1. We note that your letter to this office requesting a ruling refers to section 552.111 but does not make any argument under that section or identify any of the submitted documents which would be excepted under that section. Accordingly, we do not address a section 552.111 claim. See Gov't Code §§ 552.301(e), .302.
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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