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November 21, 2000

Ms. Cynthia B. Garcia
Assistant City Attorney
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102

OR2000-4476

Dear Ms. Garcia:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 141459.

The City of Fort Worth (the "city") received a request for the names, addresses, and telephone numbers of each person who participated in a "line-up" of city water department employees, information concerning the persons making the complaint, and the details of the complaint investigation. You have provided a letter, dated September 15, 2000, in which you document the fact that you contacted the requestor in order to clarify the request and that the requestor informed you that he wanted the names and addresses of the complainant and the complainant's mother, any information given to the media, and the name of the people who decided to do the line-up. You state that you will give the requestor a copy of the news release that was given to the media. However, in a letter dated September 28, 2000, the requestor claims that he requested more information than discussed in the September 15 letter and wants all memoranda, statements, and written documentation concerning both the complaint and the decision to place employees in a line-up. In response to the requestor's September 28 letter, you have submitted additional information to this office. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.103 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

You contend that the name and address of the complainant and the complainant's mother are excepted under section 552.101. You explain that the mother reported to the city that a water department employee made suggestive sexual comments to her eleven year old daughter. Section 552.101 of the Government Code 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. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The doctrine of common law privacy protects information that contains highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and the information must be of no legitimate concern to the public. Id. The submitted information pertains to an internal sexual harassment investigation which was prompted by the mother's report. Although information relating to an internal investigation of sexual harassment claims involving public employees may be highly intimate or embarrassing, the public generally has a legitimate interest in knowing the details of such an investigation. Open Records Decision No. 444 (1986).

In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court found that a governmental body must withhold the identities of alleged victims and witnesses to alleged sexual harassment, as well as any information which would tend to identify a witness or victim based on common law privacy. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the public's interest was sufficiently served by the disclosure of such documents. Id. In conclusion, the Ellen court held that "the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id. Based on Ellen, a governmental body must withhold the identities of alleged victims and witnesses to alleged sexual harassment as well as any information which would tend to identify a victim or witness.

After reviewing the submitted information pertaining to the sexual harassment investigation, we have marked a document, dated August 15, 2000, which appears to be analogous to the summary in Ellen and must be released. We note that the marked document does not contain the name of the victim and, therefore, must be released in its entirety. However, you must withhold the name and address of the complainant and her mother and the remaining information pertaining to the sexual harassment investigation, including the employees involved in the line-up, under section 552.101 in conjunction with the holding in Ellen.

You also claim that the submitted information should be withheld under section 552.103. Although most of the information is excepted under section 552.101, we must determine whether the summary dated August 15, 2000 and the e-mails marked Exhibits E and F are excepted under section 552.103. Section 552.103(a) provides as follows:

(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.

A governmental body has the burden of providing relevant facts and documents to show the applicability of an exception in a particular situation. The test for establishing that section 552.103(a) applies is a two-prong showing 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 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 588 (1991). Further, litigation must be pending or reasonably anticipated on the date the requestor applies to the public information officer for access. Gov't Code 552.103(c).

To establish that litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party. Open Records Decision No. 555 (1990); see Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). On the other hand, this office has determined that if an individual publicly threatens to bring suit against a governmental body, but does not actually take objective steps toward filing suit, litigation is not reasonably anticipated. See Open Records Decision No. 331 (1982). Nor does the mere fact that an individual hires an attorney and alleges damages serve to establish that litigation is reasonably anticipated. Open Records Decision No. 361 at 2 (1983). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986).

You point to the request letter as proof that the city reasonably anticipates litigation. In the request letter, the requestor, who is an attorney, states that he represents thirteen water department employees who were involved in the line-up. The attorney further states that he has been retained to investigate the complaint that led to the line-up which he claims humiliated his clients. You have also provided a videotape of newscasts concerning the line-up. In the newscasts, water department employees claim that the line-up humiliated them and violated their civil rights. According to the newscasts, the employees are considering filing suit against the city. Based on the totality of the circumstances, we conclude that you have demonstrated that litigation is reasonably anticipated and that the information relates to the litigation under section 552.103.

However, we note that the summary dated August 15 must be released pursuant to section 552.022 of the Government Code. Section 552.022(a) provides in pertinent part:

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[.]

Section 552.103 is a discretionary exception under the Public Information Act and is, therefore, not "other law" that makes the submitted information confidential. See Open Records Decision No. 551 (1990) (statutory predecessor to section 552.103 serves only to protect a governmental body's position in litigation and does not itself make information confidential). Because the summary is a completed report, you must release this information under section 552.022(a)(1) of the Government Code. However, you may withhold the e-mails marked Exhibits E and E under section 552.103 of the Government Code.

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). 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).

In conclusion, you must release the marked summary of the sexual harassment investigation. However, you must withhold the name and address of the complainant and her mother as well as the documents relating to the sexual harassment investigation under section 552.101 and common law privacy. Further, you may withhold the e-mails marked as Exhibits E and F under section 552.103.

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,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB\er

Ref: ID# 141459

Encl: Submitted documents & audio tape

cc: Mr. Art Brender
Law Offices of Art Brender
Pennsylvania at Eighth Avenue
600 Eighth Avenue
Fort Worth, Texas 76104
(w/o enclosures)


 

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