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  Ruling.doc

December 2, 2002

Ms. Pamela Smith
Assistant General Counsel
Texas Department of Public Safety
P. O. Box 4087
Austin, Texas 78773-0001

OR2002-6844

Dear Ms. Smith:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 172927.

The Texas Department of Public Safety (the "department") received a written request for all documents pertaining to a certain "administrative investigation," including written statements, taped interviews, handwritten notes, summary of the investigation and recommendations concerning the findings of the investigation. You contend that certain information coming within the scope of the request is excepted from required disclosure pursuant to sections 552.101 and 552.107 of the Government Code.

We note at the outset that the requested information, which concerns a sexual harassment complaint, is specifically made subject to section 552.022 of the Government Code. Section 552.022(a) provides in pertinent part as follows:

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[.] [Emphasis added.]

The sexual harassment investigation is completed. Consequently, the department may withhold the submitted records only to the extent the information contained therein is made confidential under other law or is otherwise protected by section 552.108 of the Government Code. You do not raise section 552.108 for these records. Section 552.107 of the Government Code is a discretionary exception that does not make information confidential for purposes of section 552.101. See Open Records Decision Nos. 676 at 6 (2002), 630 at 4 (1994) (governmental body may waive attorney-client privilege). Accordingly, the department may not withhold any portion of Exhibit A pursuant to section 552.107(1).

However, because you raise section 552.101, which protects "information considered to be confidential by law," we will consider the applicability of this exception to the records at issue. Section 552.101 of the Government Code protects information protected by common-law 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.

In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court addressed the applicability of the common-law privacy doctrine to files of an investigation of allegations of sexual harassment. 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. Id. at 525. The court upheld 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 that would tend to identify a witness or victim.

You have not submitted to this office any document that would constitute an adequate summary of the investigation for purposes of Ellen. We therefore assume for purposes of this ruling that no such summary exists. Given that assumption, we conclude in this instance that the department must release most of the information you submitted to this office as Exhibit B. Although this office usually advises that the identities of victims of sexual harassment and witnesses to sexual harassment must be withheld pursuant to common-law privacy in accordance with Ellen, in this instance it appears that the department may have already released those persons' identities to the requestor. If such is the case, we have marked additional information in Exhibit B that the department must withhold on privacy grounds. Otherwise, the department must withhold only the victim's and witnesses' identities and release all of the remaining information contained in Exhibit B.

We next address the attorney-client communications you submitted to this office as Exhibit A. As noted above, because section 552.107(1) of the Government Code is a discretionary exception, this exception will not serve to protect the contents of Exhibit A, which is also made public under section 552.022(a)(1). However, the attorney-client privilege is also found in rule 503 of the Texas Rules of Evidence. The Texas Supreme Court recently held that "[t]he Texas Rules of Civil Procedure and Texas Rules of Evidence are 'other law' within the meaning of section 552.022." See In re City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001). Therefore, we will determine whether the contents of Exhibit A are confidential under rule 503. See Open Records Decision No. 676 at 6. Rule 503(b)(1) provides:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

(A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer;

(B) between the lawyer and the lawyer's representative;

(C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein;

(D) between representatives of the client or between the client and a representative of the client; or

(E) among lawyers and their representatives representing the same client.

Tex. R. Evid. 503.

A communication is "confidential" if it is not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. See id. Therefore, in order for information to be withheld from disclosure under rule 503, a governmental body must: (1) show that the document is a communication transmitted between privileged parties or reveals a confidential communication; (2) identify the parties involved in the communication; and (3) show that the communication is confidential by explaining that it was not intended to be disclosed to third persons and that it was made in furtherance of the rendition of professional legal services to the client. Upon a demonstration of all three factors, the information is privileged and confidential under rule 503, provided the client has not waived the privilege or the document does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). See Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App.--Houston [14th Dist.] 1993, no writ).

Based on our review of your arguments and the contents of Exhibit A, we conclude that you have demonstrated that these communications are encompassed by the attorney-client privilege and, therefore, may be withheld from disclosure pursuant to rule 503 of the Texas Rules of Evidence. Accordingly, the department may withhold Exhibit A in its entirety.

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 Hadassah Schloss at the Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code 552.325. 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,

V.G. Schimmel
Assistant Attorney General
Open Records Division
VGS/RWP/lmt
Ref: ID# 172927
Enc: Submitted documents

c: Ms. Rhonda Cates
Lyon, Gorsky, Baskett,
Haring & Gilbert, L.L.P.
2501 Cedar Springs at Fairmont,
Suite 750
Dallas, Texas 75201
(w/o enclosures)


 

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