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PART TWO: Exceptions to Disclosure

II. Exceptions

    A. Section 552.101: Information Confidential by Law B. Section 552.102: Certain Personnel Information C. Section 552.103: Information Relating to Litigation D. Section 552.104: Information Relating to Competition or Bidding
    E. Section 552.105: Information Relating to Location or Price of Property
    F. Section 552.106: Certain Legislative Documents
    G. Section 552.107: Certain Legal Matters H. Section 552.108: Certain Law Enforcement Records I. Section 552.109: Certain Private Communications of an Elected Office-Holder
    J. Section 552.110: Certain Commercial Information K. Section 552.111: Agency Memoranda L. Section 552.112: Certain Information Relating to Regulation of Financial Institutions or Securities
    M. Section 552.113: Geological or Geophysical Information
    N. Section 552.026 and Section 552.114: Student Records O. Section 552.115: Birth and Death Records
    P. Section 552.116: Audit Working Papers
    Q. Section 552.117: Certain Addresses, Telephone Numbers, Social Security Numbers and Personal Family Information R. Section 552.1175: Confidentiality of Addresses, Telephone Numbers, Social Security Numbers and Personal Family Information of Peace Officers, County Jailers, Security Officers and Employees of Texas Department of Criminal Justice
    S. Section 552.118: Triplicate Prescription Form
    T. Section 552.119: Photographs of Peace Officers or Certain Security Guards
    U. Section 552.120: Rare Books and Original Manuscripts
    V. Section 552.121: Certain Documents Held for Historical Research
    W. Section 552.122: Test Items
    X. Section 552.123: Names of Applicants for Chief Executive Officer of Institutions of Higher Education
    Y. Section 552.1235: Identity of Private Donor to Institution of Higher Education
    Z. Section 552.124: Records of Library or Library System
    AA. Section 552.125: Certain Audits
    BB. Section 552.126: Name of Applicant for Superintendent of Public School District
    CC. Section 552.127: Personal Information Relating to Participants in Neighborhood Crime Watch Organization
    DD. Section 552.128: Certain Information Submitted by Potential Vendor or Contractor
    EE. Section 552.129: Motor Vehicle Inspection Information
    FF. Section 552.130: Motor Vehicle Records
    GG. Section 552.131: Information Relating to Economic Development Negotiations
    HH. Section 552.132: Crime Victim Compensation Information
    II. Section 552.1325: Crime Victim Impact Statement
    JJ. Section 552.133: Public Power Utility Information Related to Competitive Matters
    KK. Section 552.134: Certain Information Relating to Inmate of Department of Criminal Justice
    LL. Section 552.135: School District Informers
    MM. Section 552.136: Confidentiality of Credit Card, Debit Card, Charge Card and Access Device Numbers
    NN. Section 552.137: Confidentiality of Certain E-mail Addresses
    OO. Section 552.138: Family Violence Shelter Center and Sexual Assault Program Information
    PP. Section 552.139: Government Information Related to Security Issues for Computers
    QQ. Section 552.140: Military Discharge Records
    RR. Section 552.141: Information in Application for Marriage License
    SS. Section 552.141: Working Papers of Administrative Law Judges at State Office of Administrative Hearings
    TT. Section 552.141: Texas No-Call List
    UU. Section 552.142: Records of Certain Deferred Adjudications
    VV. Section 552.1425: Civil Penalty for Records of Certain Deferred Adjudications

    II. Exceptions

    A. Section 552.101: Information Confidential by Law

    Section 552.101 of the Government Code excepts from required public disclosure information considered to be confidential by law, either constitutional, statutory or by judicial decision.

    This section makes clear that the Public Information Act does not mandate the disclosure of information that other law requires be kept confidential. Section 552.352(a) states: "A person commits an offense if the person distributes information considered confidential under the terms of this chapter." A violation under section 552.352 is a misdemeanor constituting official misconduct. (291) In its discretion, a governmental body may release to the public information protected under the Act's exceptions to disclosure but not deemed confidential by law. (292) On the other hand, a governmental body has no discretion to release information deemed confidential by law. (293) Because the Act prohibits the release of confidential information and because its improper release constitutes a misdemeanor, the attorney general may raise section 552.101 on behalf of a governmental body, although the attorney general ordinarily will not raise other exceptions that a governmental body has failed to claim. (294)

    By providing that all information a governmental body collects, assembles or maintains is public unless expressly excepted from disclosure, the Act prevents a governmental body from making an enforceable promise to keep information confidential unless the governmental body is authorized by law to do so. (295) Thus, a governmental body may rely on its promise of confidentiality to withhold information from disclosure only if the governmental body has specific statutory authority to make such a promise. Unless a governmental body is explicitly authorized to make an enforceable promise to keep information confidential, it may not make such a promise in a contract (296) or a settlement agreement. (297) In addition, a governmental body may not pass an ordinance or rule purporting to make certain information confidential unless the governmental body is statutorily authorized to do so. (298)

    1. Information Confidential Under Specific Statutes

    Section 552.101 incorporates specific statutes that protect information from public disclosure. The following points are important for the proper application of this aspect of section 552.101:

      1) The language of the relevant confidentiality statute controls the scope of the protection. (299)

      2) To fall within section 552.101, a statute must explicitly require confidentiality; a confidentiality requirement will not be inferred from the statutory structure. (300)

    The attorney general must interpret numerous confidentiality statutes. Examples of information made confidential by statute include the following noteworthy examples:

    • Social Security number that is provided to a licensing agency by an applicant for or holder of a license, certificate of registration or other legal authorization issued by a licensing agency to practice in a specific occupation or profession; (301)
    • medical records that a physician creates or maintains regarding the identity, diagnosis, evaluation or treatment of a patient; (302)
    • reports, records and working papers used or developed in an investigation of alleged child abuse or neglect under Family Code chapter 261; (303)
    • certain information relating to the provision of emergency medical services; (304)
    • communications between a patient and a mental health professional and records of the identity, diagnosis or treatment of a mental health patient created or maintained by a mental health professional; (305)
    • certain personal information in a government-operated utility customer's account records if the customer has requested that the utility keep the information confidential; (306)
    • retirement records of programs administered by the Employees Retirement System that are in the custody of the system or an administrator, carrier or governmental agency acting in cooperation with the system, with certain exceptions; (307) and
    • certain individually identifiable health information protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). (308)

    In the following examples, the attorney general has interpreted the scope of confidentiality provided by Texas statutes under section 552.101:

      Open Records Decision No. 658 (1998) -- section 154.073 of the Civil Practice and Remedies Code does not make confidential a governmental body's mediated final settlement agreement; (309)

      Open Records Decision No. 655 (1997) -- concerning confidentiality of criminal history record information and permissible interagency transfer of such information;

      Open Records Decision No. 649 (1996) -- originating telephone numbers and addresses furnished on a call-by-call basis by a service supplier to a 9-1-1 emergency communication district established under subchapter D of chapter 772 of the Health and Safety Code are confidential under section 772.318 of the Health and Safety Code. Section 772.318 does not except from disclosure any other information contained on a computer-aided dispatch report that was obtained during a 9-1-1 call;

      Open Records Decision No. 643 (1996) -- section 21.355 of the Education Code makes confidential any document that evaluates, as that term is commonly understood, the performance of a teacher or administrator. The term "teacher" as used in section 21.355 means an individual who is required to hold and does hold a teaching certificate or school district teaching permit under subchapter B of chapter 21, and who is engaged in teaching at the time of the evaluation; an "administrator" is a person who is required to hold and does hold an administrator's certificate under subchapter B of chapter 21, and is performing the functions of an administrator at the time of the evaluation;

      Open Records Decision No. 642 (1996) -- section 143.1214(b) of the Local Government Code requires the City of Houston Police Department to withhold documents relating to an investigation of a City of Houston fire fighter conducted by the City of Houston Police Department's Public Integrity Review Group when the Public Integrity Review Group has concluded that the allegations were unfounded;

      Open Records Decision No. 640 (1996) (replacing Open Records Decision No. 637 (1996)) -- the Texas Department of Insurance must withhold any information obtained from audit "work papers" that are "pertinent to the accountant's examination of the financial statements of an insurer" under section 8 of article 1.15 of the Insurance Code; section 9 of article 1.15 makes confidential the examination reports and related work papers obtained during the course of an examination of a carrier; section 9 of article 1.15 does not apply to examination reports and work papers of carriers under liquidation or receivership; and

      Open Records Decision No. 632 (1995) -- the term "personal representative," as that term is used in section 773.093 of the Health and Safety Code pertaining to the release of confidential emergency medical services patient records, signifies "personal representative" as defined in section 3(aa) of the Probate Code.

    Section 552.101 also incorporates the confidentiality provisions of federal statutes and regulations. For example, certain federal laws may govern whether a state or local agency may release a social security number. (310) In Open Records Decision No. 641 (1996), the attorney general ruled that information collected under the Americans with Disabilities Act, 42 U.S.C. �� 12101 et seq., from an applicant or employee concerning that individual's medical condition and medical history is confidential under section 552.101 of the Government Code, in conjunction with provisions of the Americans with Disabilities Act. This type of information must be collected and maintained separately from other information and may be released only as provided by the Americans with Disabilities Act.

    As a general rule, the mere fact that a governmental body in Texas holds certain information that is confidential under the federal Freedom of Information Act or the federal Privacy Act will not bring the information within the section 552.101 exception, as those acts govern disclosure only of information that federal agencies hold. (311) However, if an agency of the federal government shares its information with a Texas governmental entity, the Texas entity must withhold the information that the federal agency determined to be confidential under federal law. (312)

    2. Information Confidential by Judicial Decision

    a. Information Confidential Under Common Law or Constitutional Privacy Doctrine

    i. Common Law Privacy

    (a.) Generally

    Section 552.101 also excepts from required public disclosure information held confidential under case law. Pursuant to the Texas Supreme Court decision in Industrial Foundation of the South v. Texas Industrial Accident Board, (313) section 552.101 applies to information when its disclosure would constitute the common law tort of invasion of privacy through the disclosure of private facts. To be within this common law tort, the information must (1) contain highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and (2) be of no legitimate concern to the public. (314) Because much of the information that a governmental body holds is of legitimate concern to the public, the doctrine of common law privacy frequently will not exempt information that might be considered "private." For example, information about public employees' conduct on the job is generally not protected from disclosure. (315) The attorney general has found that the doctrine of common law privacy does not protect the specific information at issue in the following decisions:

      Open Records Decision No. 625 (1994) -- a company's address and telephone number;

      Open Records Decision No. 620 (1993) -- a corporation's financial information;

      Open Records Decision No. 616 (1993) -- a "mug shot," unrelated to any active criminal investigation, taken in connection with an arrest for which an arrestee subsequently was convicted and is serving time;

      Open Records Decision No. 611 (1992) -- records held by law enforcement agencies regarding violence between family members unless the information is highly intimate and embarrassing and of no legitimate public interest;

      Open Records Decision No. 594 (1991) -- certain information regarding a city's drug testing program for employees;

      Open Records Decision No. 441 (1986) -- job-related examination scores of public employees or applicants for public employment; and

      Open Records Decision No. 169 (1977) -- social security numbers. (316)

    The attorney general has concluded that, with the exception of victims of sexual assault, (317) section 552.101 does not categorically except from required public disclosure, on common law privacy grounds, the names of crime victims. (318)

    In addition to the seminal Public Information Act privacy case of Industrial Foundation, courts in other cases have considered the common law right to privacy in the context of section 552.101 of the Act. In two cases involving the Fort Worth Star-Telegram newspaper, the Texas Supreme Court weighed an individual's right to privacy against the right of the press to publish certain embarrassing information concerning an individual. In Star-Telegram, Inc. v. Doe, (319) a rape victim sued the newspaper, which had published articles disclosing the age of the victim, the relative location of her residence, the fact that she owned a home security system, that she took medication, that she owned a 1984 black Jaguar automobile, and that she owned a travel agency. The newspaper did not reveal her actual identity. The court held that the newspaper in this case could not be held liable for invasion of privacy for public disclosure of embarrassing private facts because, although the information disclosed by the articles made the victim identifiable by her acquaintances, it could not be said that the articles disclosed facts which were not of legitimate public concern.

    In Star-Telegram, Inc. v. Walker, (320) the court addressed another case involving the identity of a rape victim. In this case, the victim's true identity could be gleaned from the criminal court records and testimony. The court found that because trial proceedings are public information, the order entered by the criminal court closing the files and expunging the victim's true identity from the criminal records (more than three months following the criminal trial) could not retroactively abrogate the press' right to publish public information properly obtained from open records. Once information is in the public domain, the court stated, the law cannot recall the information. Therefore, the court found that the newspaper could not be held liable for invasion of privacy for publication of information appearing in public court documents.

    In Morales v. Ellen, (321) the court of appeals considered whether the statements and names of witnesses to and victims of sexual harassment were public information under the Act. In Open Records Decision No. 579 (1990), the attorney general had concluded that an investigative file concerning a sexual harassment complaint was not protected by common law privacy. The decision in Ellen modified that interpretation. The Ellen court found that the names of witnesses and their detailed affidavits were "highly intimate or embarrassing." Furthermore, the court found that, because information pertinent to the sexual harassment charges and investigation already had been released to the public in summary form, the legitimate public interest in the matter had been satisfied. Therefore, the court determined that, in this instance, the public did not possess a legitimate interest in the names of witnesses to or victims of the sexual harassment, in their statements, or in any other information that would tend to identify them. The Ellen court did not protect from public disclosure the identity of the alleged perpetrator of the sexual harassment.

    (b.) Financial Information

    Governmental bodies frequently claim that financial information pertaining to an individual is protected under the doctrine of common law privacy as incorporated into section 552.101. Resolution of these claims hinges upon the role the information plays in the relationship between the individual and the governmental body.

    Information regarding a financial transaction between an individual and a governmental body is a matter of legitimate public interest; thus, the doctrine of common law privacy does not generally protect from required public disclosure information regarding such a transaction. (322) Examples of financial transactions between a person and a governmental body include a debt owed to a public hospital, (323) and a public employee's participation in an insurance program funded wholly or partially by his or her employer. (324) In contrast, a public employee's participation in a voluntary investment program or deferred compensation plan that the employer offers but does not fund is not considered a financial transaction between the individual and the governmental body; information regarding such participation is considered intimate and of no legitimate public interest. (325) Consequently, the doctrine of common law privacy generally excepts such financial information from required public disclosure.

    The doctrine of common law privacy does not except from disclosure the basic facts concerning a financial transaction between an individual and a governmental body. (326) On the other hand, common law privacy generally protects the "background" financial information of the individual, that is, information about the individual's overall financial status and past financial history. (327) However, certain circumstances may justify the public disclosure of background financial information; therefore, a determination of the availability of background financial information under the Act must be made on a case-by-case basis. (328)

    ii. Constitutional Privacy

    Section 552.101 also incorporates constitutional privacy. (329) The United States Constitution protects two kinds of individual privacy interests: (1) an individual's interest in independently making certain important personal decisions about matters that the United States Supreme Court has stated are within the "zones of privacy," as described in Roe v. Wade (330) and Paul v. Davis (331) and (2) an individual's interest in avoiding the disclosure of personal matters to the public or to the government. (332) The "zones of privacy" implicated in the individual's interest in independently making certain kinds of decisions include matters related to marriage, procreation, contraception, family relationships, and child rearing and education. (333)

    The second individual privacy interest that implicates constitutional privacy involves matters outside the zones of privacy. To determine whether the constitutional right of privacy protects particular information, the release of which implicates a person's interest in avoiding the disclosure of personal matters, the attorney general applies a balancing test that weighs the individual's interest in privacy against the public's right to know the information. Although such a test might appear more protective of privacy interests than the common law test, the scope of information considered private under the constitutional doctrine is far narrower than that under the common law; the material must concern the "most intimate aspects of human affairs." (334)

    iii. Privacy Rights Lapse Upon Death of the Subject

    Common law and constitutional privacy rights lapse upon the death of the subject. (335) Consequently, common law and constitutional privacy can be asserted on behalf of family members of a deceased individual only on the basis of their own privacy interests, not on the basis of the deceased individual's privacy. (336) Whether confidentiality imposed by statutes outside the Public Information Act lapses depends upon the particular statute concerned. (337)

    iv. False-Light Privacy

    The Texas Supreme Court has held that false-light privacy is not an actionable tort in Texas. (338) In addition, in Open Records Decision No. 579 (1990), the attorney general determined that the statutory predecessor to section 552.101 did not incorporate the common law tort of false-light privacy, overruling prior decisions to the contrary. (339) Thus, the truth or falsity of information is not relevant under the Public Information Act.

    b. Information Within the Informer's Privilege

    As interpreted by the attorney general, section 552.101 of the Government Code incorporates the "informer's privilege." In Roviaro v. United States, (340) the United States Supreme Court explained the rationale underlying the informer's privilege:

      What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. (341)

    In accordance with this policy, the attorney general has construed the informer's privilege aspect of section 552.101 as protecting the identity only of a person who (1) reports a violation or possible violation of the law (2) to officials charged with the duty of enforcing the particular law. The informer's privilege facet of section 552.101 does not protect information about lawful conduct. (342) Moreover, the informer's privilege does not protect the identity of a person who has reported conduct that may be illegal when the person does not consider the conduct to be illegal. (343) The privilege protects information reported to administrative-agency officials having a duty to enforce statutes with civil or criminal penalties, as well as to law enforcement officers. (344)

    The informer's privilege protects not only the informer's identity, but also any portion of the informer's statement that might tend to reveal the informer's identity. (345) Of course, protecting an informer's identity and any identifying information under the informer's privilege serves no purpose if the subject of the information already knows the informer's identity. The attorney general has held that the informer's privilege does not apply in such a situation. (346)

    The informer's privilege facet of section 552.101 of the Government Code serves to protect the flow of information to a governmental body; it does not serve to protect a third person. (347) Thus, since it exists to protect the governmental body's interest, this privilege, unlike other section 552.101 claims, may be waived by the governmental body. (348)

    Occasionally, a law enforcement agency may seek to withhold from required public disclosure under the informer's privilege aspect of section 552.101 information that identifies the complainant in a criminal investigative file. Information that identifies a complainant is front page offense report information that is generally considered public. (349) Front page offense report information may be withheld from disclosure only in special situations. (350) Consequently, in order to withhold complainant-identifying information under the informer's privilege, a governmental body must show the existence of special circumstances in a particular case.

    School districts may rely on another exception in the Act to withhold information about certain informers. Section 552.135 excepts from public disclosure, with several exceptions, information held by a school district that would identify a current or former student or employee who has furnished a report of another person's possible violation of criminal, civil or regulatory law to the school district or to the proper regulatory enforcement authority. (For a discussion of this exception, see page 146 in this handbook.)

    B. Section 552.102: Certain Personnel Information

    Section 552.102 provides as follows:

      (a) Information is excepted from [required public disclosure] if it is information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, except that all information in the personnel file of an employee of a governmental body is to be made available to that employee or the employee's designated representative as public information is made available under this chapter. The exception to public disclosure created by this subsection is in addition to any exception created by Section 552.024. Public access to personnel information covered by Section 552.024 is denied to the extent provided by that section.

      (b) Information is excepted from [required public disclosure] if it is a transcript from an institution of higher education maintained in the personnel file of a professional public school employee, except that this section does not exempt from disclosure the degree obtained or the curriculum on a transcript in the personnel file of the employee.

    1. Unwarranted Invasion of Privacy

    The court in Hubert v. Harte-Hanks Texas Newspapers, Inc. (351) ruled that the test to be applied under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Foundation for applying the doctrine of common law privacy as incorporated by section 552.101. (For a discussion of common law privacy, refer to page 65 of this handbook.) Consequently, in claiming that information is excepted from public disclosure under section 552.102, a governmental body should not rely upon decisions interpreting this provision that predate the Hubert decision.

    Because there is a legitimate public interest in the activities of public employees in the workplace, information about public employees is commonly held not to be excepted from required public disclosure under this test. Therefore, although this exception is commonly referred to as the "personnel file" exception, in reality this provision excepts very little of the information commonly found in the personnel files of public employees. For example, information about public employees' job performance or the reasons for their dismissal, demotion, promotion or resignation is not excepted from public disclosure. (352) On the other hand, information commonly found in public employee personnel files that reveals personal financial information generally is excepted from public disclosure under the common law privacy test, except to the extent the information reflects a transaction between the employee and the public employer. (353) (For a discussion of the application of the common law privacy doctrine to financial information, refer to page 67 of this handbook.)

    Open Records Decision No. 284 (1981) determined that letters of recommendation supplied under an express promise of confidentiality prior to the enactment date of the Public Information Act may be withheld from required public disclosure. Other recommendations, whether or not given under a promise of confidentiality, are not protected under section 552.102. (For a discussion of the limits imposed by the Public Information Act on a governmental body's authority to enter into confidentiality agreements, see page 61 of this handbook.) In addition, in light of Open Records Decision No. 615 (1993), opinions and recommendations concerning routine personnel matters are no longer protected under section 552.111; governmental bodies should not rely on attorney general decisions issued prior to Open Records Decision No. 615 (1993) that apply section 552.111 (or its statutory predecessor) to personnel information. (354) (For a discussion of the inapplicability of section 552.111 to advice, opinions and recommendations found in personnel records, refer to page 105 of this handbook.) (355)

    Section 552.102 applies to former as well as current public employees. (356) However, section 552.102 does not apply to applicants for employment. (357) (For a discussion of the right of access set forth in subsection (a) of section 552.102, refer to page 26 of this handbook.) In addition, section 552.102 applies only to the personnel records of public employees, not the records of private employees.

    2. Transcripts of Professional Public School Employees

    Section 552.102 also protects from required public disclosure most information on a transcript from an institution of higher education maintained in the personnel files of professional public school employees. Section 552.102(b) does not except from disclosure information on a transcript detailing the degree obtained and the curriculum pursued. (358) Moreover, the attorney general has interpreted section 552.102(b) to apply only to the transcripts of employees of public schools providing public education under title 2 of the Education Code, not to employees of colleges and universities providing higher education under title 3 of the Education Code. (359)

    3. Evaluations of Public School Teachers and Administrators

    Although the disclosure of the evaluations of public school teachers and administrators does not constitute an invasion of privacy, (360) such evaluations are confidential by statute and therefore excepted from public disclosure pursuant to section 552.101 of the Government Code. (361) Section 21.355 of the Education Code makes confidential a "document evaluating the performance of a teacher or administrator." (362)

    C. Section 552.103: Information Relating to Litigation

    Section 552.103(a) of the Act, commonly referred to as the "litigation exception," excepts from required public disclosure:

      ...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. (363)

    Section 552.103(a) was intended to prevent the use of the Public Information Act as a method of avoiding the rules of discovery used in litigation. (364) This exception enables a governmental body to protect its position in litigation "by forcing parties seeking information relating to that litigation to obtain it through discovery" procedures. (365)

    1. Governmental Body's Burden

    For information to be excepted from public disclosure by section 552.103(a), (1) litigation involving the governmental body must be pending or reasonably anticipated and (2) the information must relate to that litigation. (366) Therefore, a governmental body that seeks an attorney general decision has the burden of clearly establishing both prongs of this test. (367) For purposes of section 552.103(a), a contested case under the Administrative Procedure Act (APA), Government Code chapter 2001, constitutes "litigation." (368) Questions remain regarding whether administrative proceedings not subject to the APA may be considered litigation within the meaning of section 552.103(a). (369) Former section 552.103(a)(2) required the attorney for a governmental body that claimed section 552.103 to determine initially whether section 552.103(a) should be claimed, a determination that was subject to review by the attorney general under section 552.301 of the Act. (370) The Seventy-sixth Legislature eliminated this requirement. (371)

    Whether litigation is reasonably anticipated must be determined on a case-by-case basis. (372) Section 552.103(a) requires concrete evidence that litigation is realistically contemplated; it must be more than conjecture. (373) The mere chance of litigation is not sufficient to trigger section 552.103(a). (374) The fact that a governmental body received a claim letter that it represents to the attorney general to be in compliance with the notice requirements of the Texas Tort Claims Act, Civil Practice and Remedies Code chapter 101, or applicable municipal ordinance, shows that litigation is reasonably anticipated. (375) If a governmental body does not make this representation, the claim letter is a factor the attorney general will consider in determining from the totality of the circumstances presented whether the governmental body has established that litigation is reasonably anticipated.

    In previous open records decisions, the attorney general had concluded that a governmental body could claim the litigation exception only if it established that withholding the information was necessary to protect the governmental body's strategy or position in litigation. (376) However, Open Records Decision No. 551 (1990) significantly revised this test and concluded that the governmental body need only establish the relatedness of the information to the subject matter of the pending or anticipated litigation. (377) Therefore, to meet its burden under section 552.103(a) in requesting an attorney general decision under the Act, the governmental body must identify the issues in the litigation and explain how the information relates to those issues. (378) When the litigation is actually pending, the governmental body should also provide the attorney general a copy of the relevant pleadings. (379)

    2. Only Evidence Existing at the Time of the Request

    Before the Legislature amended section 552.103 in 1999, the attorney general accepted as evidence of the applicability of section 552.103 information about a change in the circumstances of the litigation underlying a section 552.103(a) claim that occurred after the requestor requested the information and after the governmental body requested a decision from the attorney general. (380) The attorney general can no longer follow this interpretation because of the Seventy-sixth Legislature's amendment to section 552.103. (381) That amendment added subsection (c) which provides as follows:

      Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.

    Consequently, in determining whether a governmental body has met its burden under section 552.103, the attorney general or a court can only consider the circumstances that existed on the date the governmental body received the request for information, not information about occurrences after the date of the request for information. (382)

    3. Temporal Nature of Section 552.103

    Generally, when parties to litigation have inspected the records pursuant to court order, discovery or through any other means, section 552.103(a) may no longer be invoked. (383) In addition, once litigation is neither reasonably anticipated nor pending, section 552.103(a) is no longer applicable. (384) Once a governmental body has disclosed information relating to litigation, the governmental body is ordinarily precluded from invoking section 552.103(a) to withhold the same information. This is not the case, however, when a governmental body has disclosed information to a co-defendant in litigation, where the governmental body believes in good faith that it has a constitutional obligation to disclose it. (385)

    4. Scope of Section 552.103

    Section 552.103 applies to information that relates to pending or reasonably anticipated litigation, which is a very broad category of information. (386) The exception no longer expressly includes information relating to settlement negotiations, as it did before its amendment in 1999. (387) The protection of section 552.103 may overlap with that of discovery privileges and other exceptions that encompass discovery privileges. However, the standard for proving that section 552.103 applies to information is the same regardless of whether the information is also subject to a discovery privilege.

    For example, information excepted from disclosure under the litigation exception may also be subject to the work product privilege. (388) However, the standard for proving that the litigation exception applies is wholly distinct from the standard for proving that the work product privilege applies. (389) The work product privilege is incorporated into the Act by section 552.111 of the Government Code, not section 552.103. (390) If both section 552.103 and the work product privilege could apply to requested information, the governmental body has the discretion to choose to assert either or both of the exceptions. (391) However, the governmental body must meet distinct burdens depending on the exception it is asserting. (392) Under section 552.103, the governmental body must demonstrate that the requested information relates to pending or reasonably anticipated litigation. (393) Under the work product privilege, the governmental body must demonstrate that the requested information was created for trial or in anticipation of civil litigation by or for a party or a party's representative. (394) (For a discussion of section 552.111, refer to page 104 of this handbook.)

    5. Duration of Section 552.103 for Criminal Litigation

    Section 552.103(b) provides:

      For purposes of this section, the state or a political subdivision is considered to be a party to litigation of a criminal nature until the applicable statute of limitations has expired or until the defendant has exhausted all appellate and postconviction remedies in state and federal court.

    The attorney general has determined that the statutory predecessor to section 552.103(b), former V.T.C.S. article 6252-17a, section 3(e), is not a separate exception to disclosure; it merely provides a time frame within which the litigation exception excepts information from disclosure. (395) Former section 3(e) was not included among the specific exceptions to disclosure set forth in the Act. Although former section 3(e) has since been codified as section 552.103(b) of the Government Code, this is not significant to its construction since the codification of the Act in the Government Code is a nonsubstantive revision. (396)

    D. Section 552.104: Information Relating to Competition or Bidding

    Section 552.104 of the Government Code provides as follows:

      (a) Information is excepted from the requirements of Section 552.021 if it is information that, if released, would give advantage to a competitor or bidder.

      (b) The requirement of Section 552.022 that a category of information listed under Section 552.022(a) is public information and not excepted from required disclosure under this chapter unless expressly confidential under law does not apply to information that is excepted from required disclosure under this section.

    The purpose of section 552.104(a) is to protect the interests of a governmental body in situations such as competitive bidding and requests for proposals, where the governmental body may wish to withhold information in order to obtain more favorable offers. (397) Significantly, it is not designed to protect the interests of private parties that submit information such as bids and proposals to governmental bodies. (398) Because section 552.104(a) protects only the interests of governmental bodies, it is an exception that a governmental body may waive by, for example, disclosing the information to the public or failing to raise the exception within the ten-day deadline. (399) (For a discussion of the ten-day deadline, refer to page 29 of this handbook.)

    Generally, section 552.104(a) protects information from public disclosure if the governmental body demonstrates potential harm to its interests in a particular competitive situation. A general allegation of a remote possibility of harm is not sufficient to invoke section 552.104(a). (400)

    Section 552.104(a) is frequently raised to protect information submitted to a governmental body in response to a competitive bidding notice or request for proposals. In this context, the protection of section 552.104(a) is temporal in nature. Generally, section 552.104(a) does not except bids from public disclosure after bidding is completed and the contract has been awarded. (401) However, bids may continue to be withheld from public disclosure during the period in which the governmental body seeks to clarify bids and bidders remain at liberty to furnish additional information. (402) Section 552.104(a) does not apply when a single individual or entity is seeking a contract, since there are no "competitors" for that contract. (403) Note that even when section 552.104(a) does not protect bids from required public disclosure, section 552.110 will require the governmental body to withhold any portions of those bids that contain trade secrets or other commercial or financial information that is made confidential by law. (404) (For a discussion of the section 552.110 exception, refer to page 102 of this handbook.) In addition to the actual bid proposals, section 552.104(a) may protect information related to the bidding process that is not part of a bid. (405)

    Although early decisions of the attorney general concluded that section 552.104(a) does not protect the interests of governmental bodies when they engage in competition with private entities in the marketplace, (406) this line of opinions has been reexamined. In Open Records Decision No. 593 (1991), the attorney general concluded that a governmental body may claim section 552.104(a) to withhold information to maintain its competitive advantage in the marketplace if the governmental body can demonstrate (1) that it has specific marketplace interests and (2) the possibility of specific harm to these marketplace interests from the release of the requested information. (407)

    A governmental body that demonstrates that section 552.104 applies to information may withhold that information even if it falls within one of the categories of information listed in section 552.022(a). (408) (For a discussion of section 552.022, refer to page 58 of this handbook.)

    E. Section 552.105: Information Relating to Location or Price of Property

    Section 552.105 of the Government Code excepts from required public disclosure information relating to:

      (1) the location of real or personal property for a public purpose prior to public announcement of the project; or

      (2) appraisals or purchase price of real or personal property for a public purpose prior to the formal award of contracts for the property.

    This exception protects a governmental body's planning and negotiating position with respect to particular real or personal property transactions, (409) and its protection is therefore limited in duration. The protection of section 552.105(1) expires upon the public announcement of the project for which the property is being acquired, while the protection of section 552.105(2) expires upon the governmental body's acquisition of the property in question. (410) Because section 552.105(2) extends to "information relating to" the appraisals and purchase price of property, it may protect more than just the purchase price or appraisal of a specific piece of property. (411) For example, the attorney general has held that appraisal information about parcels of land acquired in advance of others to be acquired for the same project could be withheld where this information would harm the governmental body's negotiating position with respect to the remaining parcels. (412) Similarly, the location of property to be purchased may be withheld under section 552.105(2) if releasing the location could affect the purchase price of the property.

    When a governmental body has made a good faith determination that the release of information would damage its negotiating position with respect to the acquisition of property, the attorney general in issuing a ruling under section 552.306 will accept that determination, unless the records or other information show the contrary as a matter of law. (413)

    The exception for information pertaining to "purchase price" in section 552.105(2) also applies to information pertaining to a lease price. (414)

    F. Section 552.106: Certain Legislative Documents

    Section 552.106 of the Government Code provides as follows:

      (a) A draft or working paper involved in the preparation of proposed legislation is excepted from [required public disclosure].

      (b) An internal bill analysis or working paper prepared by the governor's office for the purpose of evaluating proposed legislation is excepted from [required public disclosure].

    Section 552.106(a) protects documents concerning the deliberative processes of a governmental body relevant to the enactment of legislation. (415) The purpose of this exception is to encourage frank discussion on policy matters between the subordinates or advisors of a legislative body and the legislative body. (416) However, section 552.106(a) does not protect purely factual material. (417) If a draft or working paper contains purely factual material that can be disclosed without revealing protected judgments or recommendations, such factual material must be disclosed unless another exception to disclosure applies. (418) Section 552.106(a) protects drafts of legislation that reflect policy judgments, recommendations and proposals prepared by persons with some official responsibility to prepare them for the legislative body. (419) In addition to documents actually created by the legislature, the attorney general has construed the term "legislation" to include certain documents created by a city or a state agency. (420)

    The attorney general has decided only a few cases under section 552.106(a) or its predecessor. The following open records decisions have held certain information to be excepted from required public disclosure under the statutory predecessor to section 552.106(a):

      Open Records Decision No. 460 (1987) -- a city manager's proposed budget prior to its presentation to the city council, where the city charter directed the city manager to prepare such a proposal and the proposal was comprised of recommendations rather than facts;

      Open Records Decision No. 367 (1983) -- recommendations of the executive committee of the Texas State Board of Public Accountancy for amendments to the Public Accountancy Act; and

      Open Records Decision No. 248 (1980) -- drafts of a municipal ordinance and resolution that were prepared by a city staff study group for discussion purposes and that reflected policy judgments, recommendations and proposals.

    The following open records decisions have held information not to be excepted from required public disclosure under the statutory predecessor to section 552.106(a):

      Open Records Decision No. 482 (1987) -- drafts and working papers incorporated into materials that are disclosed to the public;

      Open Records Decision No. 429 (1985) -- documents relating to the Texas Turnpike Authority's efforts to persuade various cities to enact ordinances, for the reason that the agency had no official authority to do so and acted merely as an interested third party to the legislative process; and

      Open Records Decision No. 344 (1982) -- certain information relating to the State Property Tax Board's biennial study of taxable property in each school district, for the reason that the nature of the requested information compiled by the board was factual.

    Sections 552.106 and 552.111 were designed to achieve the same goals in different contexts. The purpose of section 552.111 is "to protect from public disclosure advice and opinions on policy matters and to encourage frank and open discussion within the agency in connection with its decision-making processes." (421) Because the policies and objectives of each exception are the same, some decisions applying section 552.111 may be helpful in determining how section 552.106 should be construed. (422) Although the provisions protect the same type of information, section 552.106 is narrower in scope because it applies specifically to the legislative process. (423) (For a discussion of section 552.111, refer to page 104 of this handbook.)

    G. Section 552.107: Certain Legal Matters

    Section 552.107 of the Government Code states that information is excepted from required public disclosure if:

      (1) it is information that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Evidence, the Texas Rules of Criminal Evidence, or the Texas Disciplinary Rules of Professional Conduct; or

      (2) a court by order has prohibited disclosure of the information. (424)

    This section has two distinct aspects: subsection (1) protects information within the attorney-client privilege and subsection (2) protects information that a court has ordered to be kept confidential.

    1. Information Within the Attorney-Client Privilege

    When seeking to withhold information not subject to section 552.022 of the Government Code based on the attorney-client privilege, a governmental body should assert section 552.107(1). (425) Discovery privileges such as the attorney-client privilege do not make information confidential for the purpose of section 552.101 of the Government Code, and therefore should not be asserted under section 552.101. (426)

    In Open Records Decision No. 676 (2002), the attorney general interpreted section 552.107 to protect the same information as protected under Texas Rule of Evidence 503. (427) Thus, the standard for demonstrating the attorney-client privilege under the Act is the same as the standard used in discovery under Rule 503. In meeting this standard, a governmental body bears the burden of providing the necessary facts to demonstrate the elements of the attorney-client privilege.

    First, the governmental body must demonstrate that the information constitutes or documents a communication. (428) Second, the communication must have been made "for the purpose of facilitating the rendition of professional legal services" to the client governmental body. (429) Third, the governmental body must demonstrate that the communication was between or among clients, client representatives, lawyers, and lawyer representatives. (430) Fourth, the governmental body must show that the communication was confidential; that is, the communication was "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." (431) Finally, because the client can waive the attorney-client privilege at any time, the governmental body must demonstrate that the communication has remained confidential. (432)

    The privilege will not apply if the attorney or the attorney's representative was acting in a capacity "other than that of providing or facilitating professional legal services to the client." In Harlandale Independent School District v. Cornyn, (433) the Third Court of Appeals addressed whether an attorney was working in her capacity as an attorney when she conducted a factual investigation, thus rendering factual information from the attorney's report excepted from public disclosure under section 552.107(1) of the Government Code. There, the Harlandale Independent School District hired an attorney to conduct an investigation into an alleged assault and render a legal analysis of the situation upon completion of the investigation. (434) The attorney produced a report that included a summary of the factual investigation as well as legal opinions. (435) While the court of appeals held that the attorney-client privilege does not apply to communications between an attorney and a client "when the attorney is employed in a non-legal capacity, for instance as an accountant, escrow agency, negotiator, or notary public," the court also held that the attorney in that case was acting in a legal capacity in gathering the facts because the ultimate purpose of her investigation was the rendition of legal advice. (436) Thus, when an attorney is hired to conduct an investigation in his or her capacity as an attorney, a report produced by an attorney containing both factual information and legal advice is excepted from disclosure in its entirety under section 552.107(1).

    If a governmental body demonstrates that any portion of a communication is protected under the attorney-client privilege, then the entire communication will be excepted from disclosure under section 552.107. (437)

    The scope of the attorney-client privilege and the work product privilege, which is encompassed by section 552.111 of the Government Code, are often confused. The attorney-client privilege covers certain communications made in furtherance of the rendition of professional legal services, while the work product privilege covers work prepared for the client's lawsuit. (438) For materials to be covered by the attorney-client privilege, they need not be prepared for litigation. (For a discussion of attorney work product and discovery privileges, refer to pages 77 and 106 of this handbook.)

    a. Attorney Fee Bills

    Attorney fee bills are governed by section 552.022(a)(16) and thus may not be withheld under section 552.107. (For a discussion of section 552.022, refer to page 58 of this handbook.) Nonetheless, information contained in attorney fee bills may be withheld if it is protected under the attorney-client privilege as defined in Rule 503 of the Texas Rules of Evidence, or is otherwise confidential under other law for the purpose of section 552.022. (439)

    b. Information that a Private Attorney Holds for the Governmental Body

    If a governmental body engages a private attorney to perform legal services, information in the attorney's possession relating to the legal services is subject to the Public Information Act. (440)

    c. Waiver of the Attorney-Client Privilege

    When a governmental body voluntarily discloses privileged material to a third party, the attorney-client privilege is waived. Texas Rule of Evidence 511 provides that, except where a disclosure is itself privileged, the attorney-client privilege is waived if a holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter. (441)

    2. Information Protected by Court Order

    Section 552.107(2) excepts from disclosure information that a court has ordered a governmental body to keep confidential. Prior to the amendment of section 552.022 in 1999, governmental bodies often relied on section 552.107(2) to withhold from disclosure the terms of a settlement agreement if a court had issued an order expressly prohibiting the parties to the settlement agreement or their attorneys from disclosing the terms of the agreement. (442) Under the current version of section 552.022, however, a state court may not order a governmental body or an officer for public information to withhold from public disclosure any category of information listed in section 552.022 unless the information is expressly made confidential under other law. (443) A settlement agreement to which a governmental body is a party is one category of information listed in section 552.022. (444) Section 552.022 also makes public such categories of information and states that these categories are not excepted under the Act unless they are expressly confidential under other law. (445) (For a discussion of section 552.022, see page 58 of this handbook.)

    For information other than the section 552.022 categories of information, section 552.107(2) excepts from disclosure information that is subject to a protective order during the pendency of the litigation. (446) As with any other exception to disclosure, a governmental must request a ruling from the attorney general if it wishes to withhold information under section 552.107(2) and should submit a copy of the protective order for the attorney general's review. A governmental body may not use a protective order as grounds for the exception once the court has dismissed the suit from which it arose. (447)

    H. Section 552.108: Certain Law Enforcement Records

    Section 552.108 of the Government Code, sometimes referred to as the "law enforcement" exception, provides as follows:

      (a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of Section 552.021 if:
        (1) release of the information would interfere with the detection, investigation, or prosecution of crime;

        (2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication;

        (3) it is information relating to a threat against a peace officer collected or disseminated under Section 411.048; or

        (4) it is information that:

          (A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or

          (B) reflects the mental impressions or legal reasoning of an attorney representing the state.

      (b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from the requirements of Section 552.021 if:
        (1) release of the internal record or notation would interfere with law enforcement or prosecution;

        (2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in conviction or deferred adjudication; or

        (3) the internal record or notation:

          (A)is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation; or

          (B) reflects the mental impressions or legal reasoning of an attorney representing the state.

      (c) This section does not except from the requirements of Section 552.021 information that is basic information about an arrested person, an arrest, or a crime.

    1. The Meaning of "Law Enforcement Agency" and the Applicability of Section 552.108 to Other Units of Government

    Section 552.108 applies only to records that can be characterized as the records of law enforcement agencies or prosecutors. Thus, section 552.108 applies to the records created by an agency, or a portion of an agency, whose primary function is to investigate crimes and enforce the criminal laws. (448) It generally does not apply to the records created by an agency whose chief function is essentially regulatory in nature. (449) For example, an agency that employs peace officers to investigate crime and enforce the criminal laws may claim that section 552.108 excepts portions of its records from required public disclosure. On the other hand, an agency involved primarily in licensing certain professionals or regulating a particular industry usually may not use section 552.108 to except its records from disclosure. (450) An agency that investigates both civil and criminal violations of law but lacks criminal enforcement authority is not a law enforcement agency for purposes of section 552.108. (451)

    Entities that have been found to be law enforcement agencies for purposes of section 552.108 include: The Texas Department of Corrections (now the Texas Department of Criminal Justice); (452) the Texas National Guard; (453) the Attorney General's Organized Crime Task Force; (454) an arson investigation unit of a fire department; (455) the El Paso Special Commission on Crime; (456) the Texas Lottery Commission; (457) the Texas Alcoholic Beverage Commission's Enforcement Division, and the State Comptroller's Office. (458)

    The following entities are not law enforcement agencies for purposes of section 552.108: the Texas Department of Agriculture; (459) the Texas Board of Private Investigators and Private Security Agencies; (460) a municipal fire department; (461) the Texas Board of Pharmacy; (462) and the Texas Real Estate Commission. (463)

    An agency that does not qualify as a law enforcement agency may, under limited circumstances, claim that section 552.108 excepts records in its possession from required public disclosure. For example, records that otherwise qualify for the section 552.108 exception, such as documentary evidence in a police file on a pending case, do not necessarily lose that status while in the custody of an agency not directly involved with law enforcement. (464) Where a non-law enforcement agency is in the custody of information that would otherwise qualify for exception under section 552.108 as information relating to the pending case of a law enforcement agency, the custodian of the records may withhold the information if it provides the attorney general with a demonstration that the information relates to the pending case and a representation from the law enforcement entity that it wishes to withhold the information. (465)

    Similarly, in construing the statutory predecessor to section 552.108, the attorney general concluded that if an investigation by an administrative agency reveals possible criminal conduct that the agency intends to report to the appropriate law enforcement agency, then section 552.108 will apply to the information gathered by the administrative agency if the information relates to an open investigation or if the release would interfere with law enforcement. (466)

    2. Application of Section 552.108

    Section 552.108 excepts from required public disclosure four categories of information:

      1) information the release of which would interfere with law enforcement or prosecution;

      2) information relating to an investigation that did not result in a conviction or deferred adjudication;

      3) information relating to a threat against a peace officer collected or disseminated under Section 411.048; and

      4) information that is prepared by a prosecutor or that reflects the prosecutor's mental impressions or legal reasoning.

    a. Interference with Detection, Investigation or Prosecution of Crime

    In order to establish the applicability of either subsection (1) or (2) of both section 552.108(a) and 552.108(b) to a requested criminal file, a law enforcement agency should inform this office of the status of the case the information concerns. (467) Information relating to a pending criminal investigation or prosecution is one example of information that is excepted under subsections (a)(1) and (b)(1), because release of such information presumptively would interfere with the detection, investigation or prosecution of crime. (468)

    All of the formal open records decisions interpreting the law enforcement exception considered the provision's predecessor statute rather than the provision as it now reads. In these decisions, this office permitted law enforcement agencies to withhold information in a closed criminal case only if its release would "unduly interfere" with law enforcement or crime prevention. (469) The following is a discussion of the "undue interference" standard under the predecessor statute as applied before the case of Holmes v. Morales. (470) The reader may find this information useful in determining the types of information to provide to the attorney general's office when seeking to withhold information under the current provision's "interference" standard.

    i. Information Relating to the Detection, Investigation, or Prosecution of Crime

    To withhold information under former section 552.108, a governmental body had to demonstrate how release of the information would "unduly interfere" with law enforcement or prosecution. (471) For example, the names and statements of witnesses could be withheld if the law enforcement agency demonstrated that disclosure might either (1) subject the witnesses to possible intimidation or harassment or (2) harm the prospects of future cooperation by the witnesses. (472) However, to prevail on its claim that section 552.108 excepted the information from disclosure, a law enforcement agency had to do more than merely make a conclusory assertion that releasing the information would unduly interfere with law enforcement. Whether the release of particular records would unduly interfere with law enforcement was determined on case-by-case basis. (473)

    (a.) Records Regarding Family Violence

    Former section 552.108 did not, as a matter of law, except from required public disclosure records held by law enforcement agencies regarding violence between adult members of a family. As with any other case, except for information ordinarily appearing on the first page of an offense report, former section 552.108 permitted a law enforcement agency to withhold all information related to a case of family violence when its release would unduly interfere with law enforcement. However, the fact that a case involved an assault by one adult family member on another did not by itself demonstrate that releasing information about that case would "unduly interfere" with law enforcement. (474)

    (b.) Mug Shots

    A mug shot taken in connection with an arrest when the arrestee was subsequently convicted of the offense for which he or she was arrested and is currently serving time was not protected by former section 552.108 unless the law enforcement agency demonstrated that its release would unduly interfere with law enforcement. (475)

    ii. Internal Records of a Law Enforcement Agency

    To withhold internal records and notations of law enforcement agencies and prosecutors under former section 552.108, a governmental body had to demonstrate how release of the information would unduly interfere with law enforcement and crime prevention. (476) For example, the Department of Public Safety was permitted to withhold a list of stations that issue drivers' licenses and the corresponding code that designates each station on the drivers' licenses issued by that station. Although the information did not on its face suggest that its release would unduly interfere with law enforcement, the Department of Public Safety explained that the codes are used by officers to determine whether a license is forged and argued that releasing the list of stations and codes would reduce the value of the codes for detecting forged drivers' licenses. (477) This office previously held that release of routine investigative procedures, techniques that are commonly known, and routine personnel information would not unduly interfere with law enforcement and crime prevention. (478)

    The supreme court has addressed the applicability of former section 552.108 to the internal records and notations of the comptroller's office. In A & T Consultants, Inc. v. Sharp, (479) the supreme court stated that former section 552.108 has the same scope as section 552(b)(7) of the federal Freedom of Information Act, (480) which prevents the disclosure of investigatory records that would reveal law enforcement methods, techniques and strategies, including those the Internal Revenue Service uses to collect federal taxes. Some information, such as the date a taxpayer's name appeared on a generation list and the assignment date and codes in audits, is excepted from disclosure by former section 552.108 because it reflects the internal deliberations within the comptroller's office, an agency charged with law enforcement and prosecutory powers. (481) For audits that have been concluded, there is little harm in releasing some of this information. (482) The audit method and audit group remain excepted from disclosure before, during and after the comptroller undertakes a taxpayer audit under former section 552.108. (483)

    The attorney general also addressed whether internal records and notations could be withheld under the statutory predecessor to section 552.108 in the following decisions:

      Open Records Decision No. 531 (1989) -- detailed guidelines regarding a police department's use of force policy may be withheld, but not those portions of the procedures that restate generally known common law rules, constitutional limitations or penal code provisions; the release of the detailed guidelines would impair an officer's ability to arrest a suspect and would place individuals at an advantage in confrontations with police;

      Open Records Decision No. 508 (1988) -- the dates on which specific prisoners are to be transferred from a county jail to the Texas Department of Corrections may be withheld prior to the transfer because release of this information could impair security, but these dates may not be withheld after the prisoner is transferred because the public has a legitimate interest in the information;

      Open Records Decision No. 506 (1988) -- the cellular mobile telephone numbers assigned to county officials and employees with specific law enforcement duties may be withheld, but not the numbers of officials and employees who are assigned no such duties;

      Open Records Decision No. 413 (1984) -- a sketch showing the security measures that the Texas Department of Corrections plans to use for its next scheduled execution may be withheld because its release may make crowd control unreasonable or difficult;

      Open Records Decision No. 394 (1983) -- except for information regarding juveniles, a jail roster may not be withheld; a jail roster is an internal record that reveals information specifically made public in other forms, such as the names of persons arrested;

      Open Records Decision No. 369 (1983) -- notes recording a prosecutor's subjective comments about former jurors may be withheld; releasing these comments would tend to reveal future prosecutorial strategy;

      Open Records Decision No. 287 (1981) -- a notation kept by the Community Services Division of a police department consisting of the name and address of a person referred, a comment about her, the name of the social worker assigned to the matter, and the date the notation was entered may not be withheld; the notation concerns social service activity, not the detection and investigation of crime, and the department offered no explanation of how its release would unduly interfere with law enforcement; and

      Open Records Decision Nos. 211 (1978), 143 (1976) -- information that would reveal the identities of undercover agents or where employees travel on sensitive assignments may be withheld.

    b. Concluded Cases

    With regard to the second category of information, information relating to a criminal investigation or prosecution that ended in a result other than a conviction or deferred adjudication may be withheld under subsections (a)(2) and (b)(2) of section 552.108. Subsections (a)(2) and (b)(2) cannot apply to an open criminal file because the investigation or prosecution for such files has not concluded. To establish the applicability of subsections (a)(2) and (b)(2), a governmental body must demonstrate that the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication.

    c. Information Relating to a Threat Against a Peace Officer

    The third category of information protected under section 552.108 consists of information relating to a threat against a peace officer that is collected or disseminated under section 411.048 of the Government Code. (484) Under section 411.048, the Department of Public Safety's Bureau of Identification and Records is required to create and maintain an index for the purpose of collecting and disseminating information regarding threats of serious bodily injury or death made against a peace officer. (485) The attorney general determined in an informal letter ruling that information provided to the Bureau of Identification and Records for potential inclusion in its database regarding threats made against a peace officer was excepted from disclosure under section 552.108(a)(3). (486)

    d. Prosecutor Information

    Under the fourth category of information, subsections (a)(4) and (b)(3) of section 552.108 protect information, including an internal record or notation, prepared by a prosecutor in anticipation of or in the course of preparing for criminal litigation or information that reflects the prosecutor's mental impressions or legal reasoning. When a governmental body asserts that the information reflects the prosecutor's mental impressions or legal reasoning, the governmental body should, in its request for a ruling, explain how the information does so.

    3. Limitations on Scope of Section 552.108

    Section 552.108(c) provides that basic information about an arrested person, an arrest or a crime is not excepted from required public disclosure. The kinds of basic information not excepted from disclosure by section 552.108 are those that were deemed public in Houston Chronicle Publishing Co. v. City of Houston (487) ("Houston Chronicle I") and catalogued in Open Records Decision No. 127 (1976). Basic information is information that ordinarily appears on the first page of an offense report, such as:

      (a) the name, age, address, race, sex, occupation, alias, social security number, police department identification number and physical condition of the arrested person;

      (b) the date and time of the arrest;

      (c) the place of the arrest;

      (d) the offense charged and the court in which it is filed;

      (e) the details of the arrest;

      (f) booking information;

      (g) the notation of any release or transfer;

      (h) bonding information;

      (i) the location of the crime;

      (j) the identification and description of the complainant;

      (k) the premises involved;

      (l) the time of occurrence of the crime;

      (m) the property involved, if any;

      (n) the vehicles involved, if any;

      (o) a description of the weather;

      (p) a detailed description of the offense; and

      (q) the names of the arresting and investigating officers. (488)

    Generally, the identity of the victim or complainant may not be withheld from disclosure under section 552.108. However, information tending to identify victims of serious sexual offenses must be withheld from public disclosure pursuant to section 552.101 because such information is protected by common law privacy. (489) In rare circumstances, a governmental body may demonstrate the existence of special circumstances that overcome the presumption of public access to the complainant's identity. (490) (For a discussion of common law privacy and information about victims of sexual offenses, refer to page 65 of this handbook.) Other specific information ordinarily found on the first page of an offense report may also be withheld under section 552.108 when the governmental body demonstrates that the release of that specific information would interfere with law enforcement. (491) Section 552.130 protects from disclosure certain information on offense reports that concerns motor vehicle records. (For a discussion of section 552.130, refer to page 136 of this handbook.)

    Although basic information not excepted from disclosure by section 552.108 often is described by its location ("first-page offense report information"), the location of the information or the label placed on it is not determinative of its status under section 552.108. For example, radio dispatch logs or radio cards maintained by a police department that contain the type of information deemed public may not be withheld. (492) Likewise, basic information appearing in other records of law enforcement agencies, such as blotters, arrest sheets, "show-up sheets," and fire casualty reports, is not excepted from disclosure by section 552.108. (493) Conversely a video of a booking that conveys information excepted from disclosure is not subject to disclosure when editing the tape is practically impossible and the public information on the tape is available in written form. (494)

    Section 552.108 generally does not apply to information made public by statute (495) or to information to which a statute grants certain individuals a right of access. For example, under section 550.065 of the Transportation Code, a governmental entity must release a requested accident report to an individual who provides at least two of the following three pieces of information:

      (1) the date of the accident,

      (2) the specific address or the highway or street where the accident occurred, or

      (3) the name of any person involved in the accident. (496)

    Information contained in a public court record also is not excepted from disclosure under section 552.108. (497)

    4. Application of Section 552.108 to Information Relating to Police Officers and Complaints Against Police Officers

    Because of their role in protecting the safety of the general public, law enforcement officers generally can expect a lesser degree of personal privacy than other public employees. (498) General information about a police officer usually is not excepted from required public disclosure by section 552.108. For example, a police officer's age, law enforcement background and previous experience and employment usually are not excepted from disclosure by section 552.108. (499)

    Similarly, information about complaints against police officers generally may not be withheld under section 552.108. For example, the names of complainants, the names of the officers who are the subjects of complaints, an officer's written response to a complaint and the final disposition of a complaint generally are not excepted from disclosure by section 552.108. (500) As previously discussed, however, the identities of witnesses, informants and persons interviewed in the course of a police internal investigation may be withheld under section 552.108 if the police department determines that disclosure either might subject these individuals to possible intimidation or harassment or might harm the prospects of future cooperation. (501) However, section 552.108 is inapplicable where a complaint against a law enforcement officer does not result in a criminal investigation or prosecution. (502)

    a. Personnel Files of Police Officers Serving in Civil Service Cities

    The disclosure of information from the personnel files of police officers serving in cities that have adopted chapter 143 of the Local Government Code (the fire fighters' and police officers' civil service law) is restricted by section 143.089 of the Local Government Code. (503) Section 143.089 contemplates two different types of personnel files, a police officer's civil service file that the civil service director is required to maintain, and an internal file that the police department may maintain for its own use. (504) In cases in which a police department investigates a police officer's misconduct and takes disciplinary action (505) against a police officer, it is required by section 143.089(a)(2) to place all investigatory records relating to the investigation and disciplinary action, including background documents such as complaints, witness statements and documents of like nature from individuals who were not in a supervisory capacity, in the police officer's civil service file maintained under section 143.089(a). (506) Records maintained in the police officer's civil service file are subject to release under chapter 552 of the Government Code. (507) However, information maintained in a police department's internal file pursuant to section 143.089(g) is confidential and must not be released. (508)

    Absent federal authority, a city police department must not release to a federal law enforcement agency information made confidential under section 143.089(g). (509) A city police department should refer a request for information in a police officer's personnel file to the civil service director or the director's designee. (510)

    5. Other Related Law Enforcement Records

    a. Criminal History Information

    Where an individual's criminal history information has been compiled or summarized by a governmental entity, the information takes on a character that implicates the individual's right of privacy in a manner that the same individual's records in an uncompiled state do not. (511) Thus, when a requestor asks for all information concerning a certain named individual and that individual is a possible suspect, a law enforcement agency must withhold this information under section 552.101 of the Government Code as that individual's privacy right has been implicated. (512)

    Federal law also imposes limitations on the dissemination of criminal history information obtained from the federal National Crime Information Center (NCIC) and its Texas counterpart, the Texas Crime Information Center (TCIC). (513) In essence, federal law requires each state to observe its own laws regarding dissemination of criminal history information it generates, but requires a state to maintain as confidential any information from other states or the federal government that the state obtains by access to the Interstate Identification Index, a component of the NCIC. (514)

    Chapter 411, subchapter F, of the Government Code contains the Texas state statutes that restrict the release of TCIC information obtained from the Texas Department of Public Safety. However, subchapter F "does not prohibit a criminal justice agency from disclosing to the public criminal history record information that is related to the offense for which a person is involved in the criminal justice system." (515) Moreover, the protection in subchapter F does not extend to driving record information maintained by the Department of Public Safety pursuant to subchapter C of chapter 521 of the Transportation Code. (516) Any person is entitled to obtain from the Department of Public Safety information regarding convictions and deferred adjudications that was obtained from judicial records and the person's own criminal history record information. (517)

    b. Juvenile Law Enforcement Records

    The Seventy-fifth Legislature's amendment to the Family Code (518) in part supercedes Open Records Decision No. 644 (1996). Open Records Decision No. 644 (1996) held that section 58.007 of the Family Code does not make confidential juvenile law enforcement records concerning juvenile conduct occurring on or after January 1, 1996, that are maintained by law enforcement agencies. Juvenile offender records held by law enforcement agencies are now expressly confidential under section 58.007(c) of the Family Code. However, section 58.007(c) only applies to juvenile law enforcement records concerning conduct that occurred on or after September 1, 1997. The relevant language of amended Family Code section 58.007(c) reads as follows:

      (c) Except as provide by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:
        (1) if maintained on paper or microfilm, kept separate from adult files and records;

        (2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and

        (3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B.

    Open Records Decision No. 644 (1996) still applies to records concerning juvenile conduct that occurred from January 1, 1996, to August 31, 1997. Section 58.007(c) of the Family Code only applies to juvenile law enforcement records concerning juvenile conduct occurring on or after September 1, 1997, that are maintained by law enforcement agencies. (519) Juvenile law enforcement records concerning conduct that occurred before January 1, 1996, are governed by former section 51.14(d) of the Family Code, which is continued in effect for that purpose. (520) However, section 58.007 does not apply where the information in question involves only a juvenile complainant or witness and not a juvenile suspect or offender.

    c. Sex Offender Registration Information

    Under article 62.08 of the Code of Criminal Procedure, all information contained in either an adult or juvenile sex offender registration form and subsequently entered into the Department of Public Safety database is public information and must be released upon written request, except for the registrant's social security number, driver's license number and telephone number, and any information that on its face would directly reveal the identity of the victim. (521)

    Local law enforcement authorities are required under article 62.03 of the Code of Criminal Procedure to provide school officials with "any information the authority determines is necessary to protect the public" regarding adult sex offenders except the person's social security number, driver's license number and telephone number, and any information that would identify the victim of the offense. (522) Upon receiving a written request for such information, the school district must release or withhold the requested information it receives in accordance with article 62.03 or other law, including the Public Information Act. (523)

    Neither a school district official nor the general public is authorized to receive from local law enforcement authorities sex offender registration information pertaining to individuals whose reportable convictions or adjudication occurred prior to September 1, 1995.

    d. Records of 9-1-1 Calls

    Originating telephone numbers and addresses furnished on a call-by-call basis by a telephone service supplier to a 9-1-1 emergency communication district established under subchapter B, C, or D of chapter 772 of the Health and Safety Code are confidential under section 772.318 of the Health and Safety Code. (524) Chapter 772 does not except from disclosure any other information contained on a computer aided dispatch report that was obtained during a 9-1-1 call. (525) Subchapter E, which applies to counties with populations over 1.5 million, does not contain a similar confidentiality provision. Other exceptions to disclosure in the Public Information Act may apply to information not otherwise confidential under section 772.318 of the Health and Safety Code. (526)

    e. Certain Information Related to Terrorism and Homeland Security

    The Seventy-eighth Legislature added sections 418.176 through 418.182 to chapter 418 of the Government Code. (527) These newly enacted provisions make confidential certain information related to terrorism.

    Release of certain information about aviation security is governed by federal law. (528) The attorney general's office has determined in several informal letter rulings that the decision to withhold or release such information rests with the head of the federal Transportation Security Administration (the "TSA")--the Under Secretary of Transportation for Security--and that requests for such information should be referred to the TSA for its decision concerning disclosure of the information. (529)

    I. Section 552.109: Certain Private Communications of an Elected Office-Holder

    Section 552.109 of the Government Code excepts from required public disclosure:

      Private correspondence or communications of an elected office holder relating to matters the disclosure of which would constitute an invasion of privacy . . . .

    This section protects the same privacy interests as section 552.101, and decisions under section 552.109 and its statutory predecessor rely on the same tests applicable under section 552.101. (530) (For a discussion of section 552.101, refer to page 61 of this handbook.) Section 552.109 protects the privacy interests only of elected office holders. (531) It does not protect the privacy interests of their correspondents. (532) Certain records of communications between citizens and members of the legislature or the lieutenant governor may be confidential by statute. (533)

    In the following open records decisions, the attorney general determined that certain information was not excepted from required public disclosure under the statutory predecessor to section 552.109:

      Open Records Decision No. 506 (1988) -- cellular mobile telephone numbers of county officials where county paid for installation of service and for telephone bills, and which service was intended to be used by officials in conducting official public business, because public has a legitimate interest in the performance of official public duties;

      Open Records Decision No. 473 (1987) -- performance evaluations of city council appointees, because this section was intended to protect the privacy only of elected office-holders; although city council members prepared the evaluations, the evaluations did not implicate their privacy interests;

      Open Records Decision No. 332 (1982) -- letters concerning a teacher's performance written by parents to school trustees, because nothing in the letters constituted an invasion of privacy of the trustees;

      Open Records Decision No. 241 (1980) -- correspondence of the governor regarding potential nominees for public office, because the material was not protected by a constitutional right of privacy; furthermore, the material was not protected by common law right of privacy because it did not contain any highly embarrassing or intimate facts and there was a legitimate public interest in the appointment process; (534) and

      Open Records Decision No. 40 (1974) -- itemized list of long distance calls made by legislators and charged to their contingent expense accounts, because such a list is not a "communication."

    J. Section 552.110: Certain Commercial Information

    Section 552.110 of the Government Code provides:

      (a) A trade secret obtained from a person and privileged or confidential by statute or judicial decision is excepted from [required public disclosure].

      (b) Commercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained is excepted from [required public disclosure].

    Section 552.110 refers to two types of information: (1) trade secrets and (2) confidential commercial or financial information obtained from a person. The Act requires a governmental body to make a good faith attempt to notify in writing a person whose proprietary information may be subject to section 552.110 within ten business days after receiving the request for the information. (535) A person so notified bears the burden of establishing the applicability of section 552.110. (536) A copy of the form the Act requires the governmental body to send to a person whose information may be subject to section 552.110, as well as section 552.101, 552.113 or 552.131, can be found in Appendix C of this handbook. For a discussion of a governmental body's or a third party's procedural duties, refer to pages 29 and 40 of this handbook.

    1. Trade Secrets

    The Texas Supreme Court has adopted the definition of the term "trade secret" from the Restatement of Torts, section 757 (1939). (537) The determination of whether any particular information is a trade secret is a determination of fact. (538) Noting that an exact definition of a trade secret is not possible, the Restatement lists six factors to be considered in determining whether particular information constitutes a trade secret:

      (1) the extent to which the information is known outside of [the company's] business;

      (2) the extent to which it is known by employees and others involved in [the company's business];

      (3) the extent of measures taken by [the company] to guard the secrecy of the information;

      (4) the value of the information to [the company] and to [its] competitors;

      (5) the amount of effort or money expended by [the company] in developing the information; [and]

      (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. (539)

    A party asserting the trade secret prong of section 552.110 is not required to satisfy all six factors listed in the Restatement in order to prevail on its claim. (540) In addition, other circumstances may be relevant in determining whether information qualifies as a trade secret. (541) Open Records Decision No. 552 (1990) noted that the attorney general is unable to resolve disputes of fact regarding the status of information as "trade secrets" and must rely upon the facts alleged or upon those facts that are discernible from the documents submitted for inspection. For this reason, the attorney general will accept a claim for exception as a trade secret when a prima facie case is made that the information in question constitutes a trade secret and no argument is made that rebuts that assertion as a matter of law. (542) In Open Records Decision No. 609 (1992), there was a factual dispute between the governmental body and the proponent of the trade secret protection as to certain elements of a prima facie case. Because the attorney general cannot resolve such factual disputes, the matter was referred back to the governmental body for fact-finding.

    2. Commercial or Financial Information Privileged or Confidential by Law

    Section 552.110 now expressly includes the standard for excepting from disclosure commercial and financial information. (543) The governmental body must demonstrate "based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom it was obtained." This standard resembles part of the test for applying the correlative exemption in the federal Freedom of Information Act, 5 U.S.C. � 552(b)(4), as set out in National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). That part of the National Parks test states that commercial or financial information is confidential if disclosure of the information is likely to cause substantial harm to the competitive position of the person from whom the information was obtained. (544) The current commercial and financial information branch of section 552.110 does not incorporate the part of the National Parks test for information that is likely to impair the government's ability to obtain necessary information in the future. Like the federal standard, section 552.110(b) requires the business enterprise whose information is at issue to make a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from disclosure. (545)

    K. Section 552.111: Agency Memoranda

    Section 552.111 of the Government Code excepts from required public disclosure:

      An interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency . . . .

    To be protected under section 552.111, information must consist of interagency or intra-agency communications. Although information protected by section 552.111 is most commonly generated by agency personnel, information created for an agency by outside consultants acting on behalf of the agency in an official capacity may be within section 552.111. (546) Communications between agencies and other third parties, however, are not protected. (547) For example, correspondence between a licensing agency and a licensee is not excepted under section 552.111. (548)

    Also, to be protected under section 552.111, an interagency or intra-agency communication must be privileged from discovery in civil litigation involving the agency. (549) The attorney general has interpreted section 552.111 to incorporate both the deliberative process privilege and the work product privilege. (550)

    1. Deliberative Process Privilege

    Section 552.111 has been read to incorporate the deliberative process privilege into the Public Information Act for intra-agency and interagency communications. (551) The deliberative process privilege, as incorporated into the Public Information Act, protects from disclosure intra-agency and interagency communications consisting of advice, opinion or recommendations on policymaking matters of the governmental body at issue. (552) The purpose of withholding advice, opinion or recommendations under section 552.111 is "to encourage frank and open discussion within the agency in connection with its decision-making processes" pertaining to policy matters. (553) "An agency's policymaking functions do not encompass internal administrative or personnel matters, and disclosure of information about such matters will not inhibit free discussion of policy issues among agency personnel." (554) Moreover, documents relating to problems with a specific employee do not relate to the making of new policy but merely implement existing policy. (555) An agency's policymaking functions do include, however, administrative and personnel matters of broad scope that affect the governmental body's policy mission. (556) Thus, because the information at issue in Open Records Decision No. 615 (1993) concerned the evaluation of a university professor's job performance, the statutory predecessor to section 552.111 did not except this information from required public disclosure. On the other hand, the information at issue in Open Records Decision No. 631 (1995) was a report addressing allegations of systematic discrimination against African-American and Hispanic faculty members in the retention, tenure and promotion process at a university. Rather than pertaining solely to the internal administration of the university, the scope of the report was much broader and involved the university's educational mission. Accordingly, section 552.111 excepted from required public disclosure the portions of the report that constituted advice, recommendations or opinions. (557)

    Even when an internal memorandum relates to a governmental body's policy functions, the deliberative process privilege excepts from disclosure only the advice, recommendations and opinions found in that memorandum. The deliberative process privilege does not except from disclosure purely factual information that is severable from the opinion portions of the memorandum. (558)

    Before June 29, 1993, the attorney general did not confine the application of the statutory predecessor to section 552.111 solely to communications relating to agencies' policymaking functions. Given the change in the interpretation of the scope of section 552.111, a governmental body that receives a request for information should exercise caution in relying on attorney general decisions regarding the applicability of this exception written before June 29, 1993. For example, in Open Records Decision No. 559 (1990), the attorney general held that the predecessor statute to section 552.111 also protects drafts of a document that has been or will be released in final form to the public and any comments or other notations on the drafts because they necessarily represent advice, opinion and recommendations of the drafter as to the form and content of the final document. However, the rationale and scope of this open records decision have been modified implicitly to apply only to those records involving an agency's policy matters.

    2. Work Product Privilege

    The attorney general has also concluded that section 552.111 incorporates the privilege for work product found in Texas Rule of Civil Procedure 192.5. (559) Rule 192.5 defines work product as:

      (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or

      (2) a communication made in anticipation of litigation or for trial between a party and the party's representatives or among a party's representatives, including the party's attorneys, consultants, sureties, indemnitors, insurers, employees, or agents. (560)

    A governmental body raising the work product privilege under section 552.111 bears the burden of providing the relevant facts in each case to demonstrate the elements of the privilege. (561) One element of the work product test is that the information must have been made or developed for trial or in anticipation of litigation. (562) In order for the attorney general to conclude that information was created for trial or in anticipation of litigation, the governmental body must demonstrate that at the time the information was created or acquired:

      a) a reasonable person would have concluded from the totality of the circumstances . . . that there was a substantial chance that litigation would ensue; and b) the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and [created or obtained the information] for the purpose of preparing for such litigation. (563)

    A "substantial chance" of litigation does not mean a statistical probability, but rather "that litigation is more than merely an abstract possibility or unwarranted fear." (564)

    Also, as part of the work product test, material or a mental impression must have been prepared or developed by or for a party or a party's representatives. (565) Similarly, in the case of a communication, the communication must have been between a party and the party's representatives. (566) Thus, a governmental body claiming the work product privilege must identify the parties or potential parties to the litigation, the person or entity that prepared the information, and any individual with whom the information was shared. (567)

    L. Section 552.112: Certain Information Relating to Regulation of Financial Institutions or Securities

    Section 552.112 of the Government Code provides:

      (a) Information is excepted from the requirements of Section 552.021 if it is information contained in or relating to examination, operating, or condition reports prepared by or for an agency responsible for the regulation or supervision of financial institutions or securities, or both.

      (b) In this section, "securities" has the meaning assigned by The Securities Act (Article 581-1 et seq., Vernon's Texas Civil Statutes).

      (c) Information is excepted from the requirements of Section 552.021 if it is information submitted by an individual or other entity to the Texas Legislative Council, or to any state agency or department overseen by the Finance Commission of Texas and the information has been or will be sent to the Texas Legislative Council, for the purpose of performing a statistical or demographic analysis of information subject to Section 323.020. However, this subsection does not except from the requirements of Section 552.021 information that does not identify or tend to identify an individual or other entity and that is subject to required public disclosure under Section 323.020(e). (568)

    This section protects specific examination, operating or condition reports obtained by agencies in regulating or supervising financial institutions or securities or information that indirectly reveals the contents of such reports. (569) Such reports typically disclose the financial status and dealings of the institutions that file them. Section 552.112 does not protect general information about the overall condition of an industry if the information does not identify particular institutions under investigation or supervision. (570) An entity must be a "financial institution" for its examination, operating or condition reports to be excepted by section 552.112; it is not sufficient that the entity is regulated by an agency that regulates or supervises financial institutions. (571) The attorney general has stated that the term "financial institution" means "any banking corporation or trust company, building and loan association, governmental agency, insurance company, or related corporation, partnership, foundation, or the other institutions engaged primarily in lending or investing funds." (572) Notably, a Texas appeals court decision, Birnbaum v. Alliance of American Insurers, (573) held that insurance companies are not "financial institutions" under section 552.112, overruling the determination in Open Record Decision No. 158 (1977) that insurance companies were "financial institutions" under the statutory predecessor to the section. Section 552.112 is a permissive exception that a governmental body may waive at its discretion. (574)

    The following open records decisions have considered whether information is excepted from required public disclosure under section 552.112:

      Open Records Decision No. 483 (1987) -- Texas Savings and Loan Department report containing a general discussion of the condition of the industry that does not identify particular institutions under investigation or supervision is not excepted from disclosure;

      Open Records Decision No. 392 (1983) -- material collected by the Consumer Credit Commissioner in an investigation of loan transactions was not protected by the statutory predecessor to section 552.112 when the requested information did not consist of a detailed description of the complete financial status of the company being investigated but rather consisted of the records of the company's particular transactions with persons filing consumer complaints;

      Open Records Decision No. 261 (1980) -- form acknowledgment by bank board of directors that Department of Banking examination report had been received is excepted from disclosure where acknowledgment would reveal the conclusions reached by the department;

      Open Records Decision No. 194 (1978) -- pawn shop license application that includes information about applicant's net assets to assess compliance with Texas Pawnshop Act is not excepted from disclosure because such information does not qualify as an examination, operating or condition report;

      Open Records Decision No. 187 (1978) -- property development plans submitted by a credit union to the Credit Union Department were excepted from disclosure by the statutory predecessor to section 552.112 because submission included detailed presentation of credit union's conditions and operations and the particular proposed investment; and

      Open Records Decision No. 130 (1976) -- investigative file of the enforcement division of the State Securities Board is excepted from disclosure.

    M. Section 552.113: Geological or Geophysical Information

    Section 552.113 underwent significant revision during the 1995 Legislative Session. (575) The amended version of section 552.113 preserved the confidentiality provided under the former version of the statute for electric logs under Subchapter M, Chapter 91, of the Natural Resources Code, and for geological or geophysical information or data, including maps concerning wells, except when filed in connection with an application or proceeding before an agency. The amended version of this exception added sections pertaining to geological or geophysical information, including electric logs, filed with the General Land Office, and includes provisions for the expiration of confidentiality of "confidential material," as that term is defined, and the use of such material in administrative proceedings before the General Land Office.

    Section 552.113 provides as follows:

      (a) Information is excepted from the requirements of Section 552.021 if it is:
        (1) an electric log confidential under Subchapter M, Chapter 91, Natural Resources Code;

        (2) geological or geophysical information or data, including maps concerning wells, except information filed in connection with an application or proceeding before an agency; or

        (3) confidential under Subsections (c) through (f).

      (b) Information that is shown to or examined by an employee of the General Land Office, but not retained in the land office, is not considered to be filed with the land office.

      (c) In this section:

        (1) "Confidential material" includes all well logs, geological, geophysical, geochemical, and other similar data, including maps and other interpretations of the material filed in the General Land Office:
          (A) in connection with any administrative application or proceeding before the land commissioner, the school land board, any board for lease, or the commissioner's or board's staff; or

          (B) in compliance with the requirements of any law, rule, lease, or agreement.

        (2) "Basic electric logs" has the same meaning as it has in Chapter 91, Natural Resources Code.

        (3) "Administrative applications" and "administrative proceedings" include applications for pooling or unitization, review of shut-in royalty payments, review of leases or other agreements to determine their validity, review of any plan of operations, review of the obligation to drill offset wells, or an application to pay compensatory royalty.

      (d) Confidential material, except basic electric logs, filed in the General Land Office on or after September 1, 1985, is public information and is available to the public under Section 552.021 on and after the later of:
        (1) five years from the filing date of the confidential material; or

        (2) one year from the expiration, termination, or forfeiture of the lease in connection with which the confidential material was filed.

      (e) Basic electric logs filed in the General Land Office on or after September 1, 1985, are either public information or confidential material to the same extent and for the same periods provided for the same logs by Chapter 91, Natural Resources Code. A person may request that a basic electric log that has been filed in the General Land Office be made confidential by filing with the land office a copy of the written request for confidentiality made to the Railroad Commission of Texas for the same log.

      (f) The following are public information:

        (1) basic electric logs filed in the General Land Office before September 1, 1985; and

        (2) confidential material, except basic electric logs, filed in the General Land Office before September 1, 1985, provided, that Subsection (d) governs the disclosure of that confidential material filed in connection with a lease that is a valid and subsisting lease on September 1, 1995.

      (g) Confidential material may be disclosed at any time if the person filing the material, or the person's successor in interest in the lease in connection with which the confidential material was filed, consents in writing to its release. A party consenting to the disclosure of confidential material may restrict the manner of disclosure and the person or persons to whom the disclosure may be made.

      (h) Notwithstanding the confidential nature of the material described in this section, the material may be used by the General Land Office in the enforcement, by administrative proceeding or litigation, of the laws governing the sale and lease of public lands and minerals, the regulations of the land office, the school land board, or of any board for lease, or the terms of any lease, pooling or unitization agreement, or any other agreement or grant.

      (i) An administrative hearings officer may order that confidential material introduced in an administrative proceeding remain confidential until the proceeding is finally concluded, or for the period provided in Subsection (d), whichever is later.

      (j) Confidential material examined by an administrative hearings officer during the course of an administrative proceeding for the purpose of determining its admissibility as evidence shall not be considered to have been filed in the General Land Office to the extent that the confidential material is not introduced into evidence at the proceeding.

      (k) This section does not prevent a person from asserting that any confidential material is exempt from disclosure as a trade secret or commercial information under Section 552.110 or under any other basis permitted by law.

    Open Records Decision No. 627 (1994) interpreted the predecessor to the current version of section 552.113 as follows:

      [S]ection 552.113 excepts from required public disclosure all "geological or geophysical information or data including maps concerning wells," unless the information is filed in connection with an application or proceeding before an agency. . . . We interpret "geological or geophysical information" as section 552.113(2) uses the term to refer only to geological and geophysical information regarding the exploration or development of natural resources. [Footnote omitted] Furthermore, we reaffirm our prior determination that section 552.113 protects only geological and geophysical information that is commercially valuable. See Open Records Decision Nos. 504 (1988) at 2; 479 (1987) at 2. Thus, we conclude that section 552.113(2) protects from public disclosure only (i) geological and geophysical information regarding the exploration or development of natural resources that is (ii) commercially valuable. (576)

    The decision explained that the phrase "information regarding the exploration or development of natural resources" signifies "information indicating the presence or absence of natural resources in a particular location, as well as information indicating the extent of a particular deposit or accumulation." (577)

    Open Records Decision No. 627 (1994) overruled Open Records Decision No. 504 (1988) to the extent the two decisions are inconsistent. In Open Records Decision No. 504 (1988), the attorney general had interpreted the statutory predecessor to section 552.113 of the Government Code to require the application of a test similar to the test used at that time to determine whether the statutory predecessor to section 552.110 protected commercial information (including trade secrets) from required public disclosure. Under that test, commercial information was "confidential" for purposes of the exemption if disclosure of the information [was] likely to have either of the following effects: 1) to impair the Government's ability to obtain necessary information in the future; or 2) to cause substantial harm to the competitive position of the person from whom the information was obtained. (578)

    Following the issuance of Open Records Decision No. 504 (1988), the attorney general articulated new tests for determining whether section 552.110 of the Government Code protects trade secret information and commercial and financial information from required public disclosure. (579) Thus, Open Records Decision No. 627 (1994) reexamined the attorney general's reliance upon the former tests for section 552.110 to determine the applicability of section 552.113. That decision noted that section 552.113, as the legislature originally enacted it, differed from its federal counterpart (580) in that the statutory predecessor to section 552.113 excepted from its scope "information filed in connection with an application or proceeding before any agency." (581) Thus, the state exception to required public disclosure exempted a more limited class of information than did the federal exemption. (582) Consequently, the decision determined that grafting the balancing test used to limit the scope of the federal exemption to the plain language of section 552.113 was unnecessary. (583) Since the current version of section 552.113 took effect on September 1, 1995, there have been no published court decisions interpreting the amended statute or the validity of Open Records Decision No. 627 (1994) in light of the amendments to the statute.

    The attorney general, however, has interpreted the term "commercially valuable" in a subsequent decision. In Open Records Decision No. 669 (2000), the attorney general applied section 552.113 to digital mapping information supplied to the General Land Office by a third party. The specific information at issue was information that the third party allowed to be disclosed to the public. (584) The attorney general held that the information was not protected under section 552.113 because the information was publicly available and thus was not commercially valuable. (585) Therefore, in order to be commercially valuable for purposes of Open Records Decision No. 627 and section 552.113, information must not be publicly available. (586)

    When a governmental body believes requested information of a third party may be excepted under this exception, the governmental body must notify the third party in accordance with section 552.305. The notice the governmental body must to send the third party is found in Appendix C of this handbook.

    N. Section 552.026 and Section 552.114: Student Records

    The Public Information Act includes two exceptions for student records, sections 552.026 and 552.114 of the Government Code.

    1. Family Educational Rights and Privacy Act of 1974

    Section 552.026 incorporates into the Texas Public Information Act the federal Family Educational Rights and Privacy Act of 1974, (587) also known as "FERPA" or the "Buckley Amendment." (588) FERPA governs the availability of student records held by educational agencies or institutions that receive federal funds under programs administered by the federal government. It prohibits, in most circumstances, the release of personally identifiable information contained in a student's education records without a parent's written consent. (589) It also gives parents a right to inspect the education records of their children. (590) If a student has reached age 18 or is attending an institution of post-secondary education, the rights established by FERPA attach to the student rather than to the student's parents. (591) "Education records" for purposes of FERPA are records that contain information directly related to a student and that are maintained by an educational institution or agency. (592)

    An educational institution or agency may, however, release "directory information" to the public if the educational institution or agency complies with certain procedures. (593) Federal regulations state that directory information includes, but is not limited to, the following information: "the student's name, address, telephone listing, electronic mail address, photograph, date and place of birth, major field of study, dates of attendance, grade level, enrollment status (e.g., undergraduate or graduate; full-time or part-time), participation in officially recognized activities and sports, weight and height of members of athletic teams, degrees, honors and awards received, and the most recent educational agency or institution attended." (594) The attorney general has determined that marital status and expected date of graduation also constitute directory information. (595)

    University police department records concerning students previously were held to be education records for the purposes of FERPA. (596) However, FERPA was amended, effective July 23, 1992, to provide that the term "education records" does not include "records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement." (597) On the basis of this provision, records created by a state university campus police department are not excepted from required public disclosure by section 552.026 of the Government Code. (598)

    FERPA applies only to records at educational institutions or agencies receiving federal funds and does not govern access to records in the custody of governmental bodies that are not educational institutions or agencies. (599) An "educational agency or institution" is "any public or private agency or institution" that receives federal funds under an applicable program. (600) Thus, an agency or institution need not instruct students in order to qualify as an educational agency or institution under FERPA. If education records are transferred by a school district or state institution of higher education to a state administrative agency concerned with education, federal regulations provide that the education records in the administrative agency's possession are subject to FERPA. (601)

    If there is a conflict between the provisions of the state Public Information Act and FERPA, the federal statute prevails. (602) However, this office has been informed by the Family Policy Compliance Office of the United States Department of Education that parents' rights to information about their children under FERPA do not prevail over school districts' rights to assert the attorney-client and work product privileges. (603) Open Records Decision No. 634 (1995) concluded that an educational agency or institution may withhold from public disclosure personally identifiable nondirectory information in "education records" as defined in FERPA, which information is excepted from required public disclosure by section 552.026, without the necessity of requesting an attorney general decision as to that exception. (604) As a general rule, exceptions to disclosure under the Public Information Act do not apply to a request by a student or parent for the student's own education records pursuant to FERPA. (605)

    FERPA is a detailed federal statute, and custodians of records covered by it should be familiar with its specific provisions. Questions about this law can be directed to the following agency:

      Family Policy Compliance Office
      U.S. Department of Education
      400 Maryland Ave., S.W.
      Washington, D.C. 20202-0498
      (202) 260-3887

    2. State Law

    Section 552.114 of the Government Code, the other exception for student records, provides as follows:

      (a) Information is excepted from [required public disclosure] if it is information in a student record at an educational institution funded wholly or partly by state revenue.

      (b) A record under Subsection (a) shall be made available on the request of:

        (1) educational institution personnel;

        (2) the student involved or the student's parent, legal guardian, or spouse; or

        (3) a person conducting a child abuse investigation required by Subchapter D, Chapter 261, Family Code.

    The term "student record" in section 552.114 generally has been considered to be the equivalent of "education records" in FERPA. An educational agency or institution that is state-funded may withhold from public disclosure information that is excepted from required disclosure by section 552.114 as a "student record," insofar as the "student record" is protected by FERPA, without the necessity of requesting an attorney general decision as to that exception. (606) Although FERPA and section 552.114 are similar, they are not coextensive. (607) For example, under section 552.114, unlike FERPA, a student's spouse has a right of access to the student's records. Thus, an educational institution that receives state funds but not federal funds would have to make student records available to a student's spouse. If an institution received both state and federal funds, the spouse would have no right of access because the federal law is paramount. (608)

    The following decisions provide examples of the type of records that have been found to be "education records" for purposes of FERPA or "student records" for purposes of the statutory predecessor to section 552.114:

      Open Records Decision No. 539 (1990) -- portions of a tape recording of an interview with a former university student athlete consisting of information about events that occurred while he was a student or while he was being recruited by the university;

      Open Records Decision No. 477 (1987) -- names of former students whose degrees were rescinded because of events that took place while those persons were students;

      Open Records Decision No. 462 (1987) -- information about student athletes prepared by a law firm acting as an agent for the university;

      Open Records Decision No. 332 (1982) -- letters written by parents to school trustees regarding teacher's performance to the extent that they contain information "directly related to a student";

      Open Records Decision No. 224 (1979) -- students' handwritten evaluations of a university faculty member in a case in which the handwriting, style of expression, and nature of comments would make identities easily traceable;

      Open Records Decision No. 214 (1978) -- class paper prepared by a group of university students; and

      Open Records Decision No. 120 (1976) -- examination materials and evaluations of a Ph.D. candidate.

    The following decisions address information found not to be subject to the confidentiality provisions of FERPA or section 552.114:

      Open Records Decision No. 612 (1992) -- records created by university campus police departments;

      Open Records Decision No. 524 (1989) -- records regarding a deceased student; and

      Open Records Decision No. 132 (1976) -- achievement test scores by grade and school that do not identify individual students.

    Finally, it should be noted that, under section 12.1051(b) of the Education Code, open-enrollment charter schools are "governmental bodies" for purposes of the Public Information Act and subject to the Act's requirements relating to a school district, school board or students.

    O. Section 552.115: Birth and Death Records

    Section 552.115 provides:

      (a) A birth or death record maintained by the bureau of vital statistics of the Texas Department of Health or a local registration official is excepted from [required public disclosure], except that:
        (1) a birth record is public information and available to the public on and after the 75th anniversary of the date of birth as shown on the record filed with the bureau of vital statistics or local registration official;

        (2) a death record is public information and available to the public on and after the 25th anniversary of the date of death as shown on the record filed with the bureau of vital statistics or local registration official;

        (3) a general birth index or a general death index established or maintained by the bureau of vital statistics or a local registration official is public information and available to the public to the extent the index relates to a birth record or death record that is public information and available to the public under Subdivision (1) or (2);

        (4) a summary birth index or a summary death index prepared or maintained by the bureau of vital statistics or a local registration official is public information and available to the public; and

        (5) a birth or death record is available to the chief executive officer of a home-rule municipality or the officer's designee if:

          (A) the record is used only to identify a property owner or other person to whom the municipality is required to give notice when enforcing a state statute or an ordinance;

          (B) the municipality has exercised due diligence in the manner described by Section 54.035(e), Local Government Code, to identify the person; and

          (C) the officer or designee signs a confidentiality agreement that requires that:

            (i) the information not be disclosed outside the office of the officer or designee, or within the office for a purpose other than the purpose described by Paragraph (A);

            (ii) the information be labeled as confidential;

            (iii) the information be kept securely; and

            (iv) the number of copies made of the information or the notes taken from the information that implicate the confidential nature of the information be controlled, with all copies or notes that are not destroyed or returned remaining confidential and subject to the confidentiality agreement.

          (b) Notwithstanding Subsection (a), a general birth index or a summary birth index is not public information and is not available to the public if:
            (1) the fact of an adoption or paternity determination can be revealed by the index; or

            (2) the index contains specific identifying information relating to the parents of a child who is the subject of an adoption placement.

          (c) Subsection (a)(1) does not apply to the microfilming agreement entered into by the Genealogical Society of Utah, a nonprofit corporation organized under the laws of the State of Utah, and the Archives and Information Services Division of the Texas State Library and Archives Commission.

          (d) For the purposes of fulfilling the terms of the agreement in Subsection (c), the Genealogical Society of Utah shall have access to birth records on and after the 50th anniversary of the date of birth as shown on the record filed with the bureau of vital statistics or local registration official, but such birth records shall not be made available to the public until the 75th anniversary of the date of birth as shown on the record. (609)

    Section 552.115 specifically applies to birth and death records of a local registration official as well as to those of the Department of Health. (610) Until the time limits set out above have passed, a birth or death record may be obtained from the Bureau of Vital Statistics only in accordance with chapter 192 of the Health and Safety Code. (611) While birth records over seventy-five years old and death records over twenty-five years old are not excepted from disclosure under the Act, a local registrar of the Bureau of Vital Statistics (612) is required by title 3 of the Health and Safety Code and rules promulgated thereunder to deny physical access to these records and to provide copies of them for a certain fee. (613) These specific provisions prevail over the more general provisions in the Act regarding inspection and copying of public records. (614)

    Section 552.115 specifically makes public a summary birth index and summary death index and also makes public a general birth index or general death index to the extent that it relates to birth or death records which themselves would be public information under the section. (615) However, a general or summary birth index is not public information if it reveals the fact of an adoption or paternity determination or contains identifying information relating to the parents of a child who is the subject of an adoption placement. (616) Although the Act itself contains no language that defines the categories of information that comprise each type of index, the Texas Department of Health has promulgated administrative rules that define each type of index. (617) In pertinent part, the current rule, which took effect July 3, 2003, provides:

      (1) General birth indexes maintained or established by the bureau of vital statistics or a local registration official shall be prepared by event year, in alphabetical order by surname of the registrant, followed by any given names or initials, the date of the event, the county of occurrence, the state or local file number, the name of the father, the maiden name of the mother, and sex of the registrant.

      (2) A general birth index is public information and available to the public to the extent the index relates to a birth record that is public on or after the 50th anniversary of the date of birth as shown on the record unless the fact of an adoption or paternity determination can be revealed or broken or if the index contains specific identifying information relating to the parents of the child who is the subject of an adoption placement. The bureau of vital statistics and local registration officials shall expunge or delete any state or local file numbers included in any general birth index made available to the public because such file numbers may be used to discover information concerning specific adoptions, paternity determinations, or the identity of the parents of children who are the subjects of adoption placements.

      (3) A summary birth index maintained or established by the bureau of vital statistics or a local registration official shall be prepared by event year, in alphabetical order by surname of the registrant, followed by any given names or initials, the date of the event, the county of occurrence, and sex of the registrant. A summary birth index or any listings of birth records are not available to the public for searching or inspection if the fact of adoption or paternity determination can be revealed from specific identifying information. (618)

    Thus, the term "summary birth index" as used in section 552.115 refers to a list in alphabetical order by surname of the child, and its contents are limited to the child's name, date of birth, county of birth and sex. Additionally, the term "general birth index" refers to a list containing only those categories of information that comprise a "summary birth index," with the additional categories of the file number and the parents' names.

    Section 552.115 also provides that a birth or death record may be made available in certain circumstances to the chief executive officer of a home rule municipality to aid in the identification of a property owner. (619)

    There are no cases or opinions interpreting section 552.115.

    P. Section 552.116: Audit Working Papers

    Section 552.116 provides:

      (a) An audit working paper of an audit of the state auditor or the auditor of a state agency, an institution of higher education as defined by Section 61.003, Education Code, a county, or a municipality is excepted from [required public disclosure]. If information in an audit working paper is also maintained in another record, that other record is not excepted from the requirements of Section 552.021 by this section.

      (b) In this section:

        (1) "Audit" means an audit authorized or required by a statute of this state or the United States and includes an investigation.

        (2) "Audit working paper" includes all information, documentary or otherwise, prepared or maintained in conducting an audit or preparing an audit report, including:

          (A) intra-agency and interagency communications; and

          (B) drafts of the audit report or portions of those drafts. (620)

    As amended by the Seventy-eighth Legislature, section 552.116 now protects audit working papers created by county and municipal auditors. To the extent that information in an audit working paper is also maintained in another record, such other record is not excepted by amended section 552.116, although such other record may be withheld from public disclosure under the Act's other exceptions. (621) The term "audit," for purposes of the section, is defined as one authorized or required by a state or federal statute. A governmental body claiming section 552.116 should cite to the statute authorizing the governmental body to conduct the audit. "Audit working paper" is defined as including all information prepared or maintained in conducting an audit or preparing an audit report including intra-agency or interagency communications and drafts of audit reports. (622) A governmental body that invokes section 552.116 must demonstrate that the audit working papers are from an audit authorized or required by statute by identifying the applicable statute. There are no cases or opinions interpreting the section as amended.

    Q. Section 552.117: Certain Addresses, Telephone Numbers, Social Security Numbers, and Personal Family Information

    Section 552.117 excepts from required public disclosure:

      (a) information that relates to the home address, home telephone number, or social security number of the following person, or that reveals whether the person has family members:
        (1) a current or former official or employee of a governmental body, except as otherwise provided by Section 552.024;

        (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 or 552.1175, as applicable;

        (3) a current or former employee of the Texas Department of Criminal Justice or of the predecessor in function of the department or any division of the department, regardless of whether the current or former employee complies with Section 552.1175;

        (4) a peace officer as defined by Article 2.12, Code of Criminal Procedure, or other law, a reserve law enforcement officer, a commissioned deputy game warden, or a corrections officer in a municipal, county, or state penal institution in this state who was killed in the line of duty, regardless of whether the deceased complied with Section 552.024 or 552.1175; or

        (5) a commissioned security officer as defined by Section 1702.002, Occupations Code, regardless of whether the officer complies with Section 552.024 or 552.1175, as applicable.

      (b) All documents filed with a county clerk and all documents filed with a district clerk are exempt from this section. (623)

    Generally, a governmental body may not invoke section 552.117 as a basis for withholding an official's or an employee's home address and telephone number if another law, such as a state statute expressly authorizing child support enforcement officials to obtain information to locate absent parents, requires the release of such information. (624) Because the subsections of section 552.117 deal with different categories of officials and employees and differ in their application, they are discussed separately below.

    1. Subsection (a)(1): Public Officials and Employees

    Section 552.117, subsection (a)(1), must be read together with section 552.024, which provides:

      (a) Each employee or official of a governmental body and each former employee or official of a governmental body shall choose whether to allow public access to the information in the custody of the governmental body that relates to the person's home address, home telephone number, or social security number, or that reveals whether the person has family members.

      (b) Each employee and official and each former employee and official shall state that person's choice under Subsection (a) to the main personnel officer of the governmental body in a signed writing not later than the 14th day after the date on which:

        (1) the employee begins employment with the governmental body;

        (2) the official is elected or appointed; or

        (3) the former employee or official ends service with the governmental body.

      (c) If the employee or official or former employee or official chooses not to allow public access to the information, the information is protected under Subchapter C.

      (d) If an employee or official or a former employee or official fails to state the person's choice within the period established by this section, the information is subject to public access.

      (e) An employee or official or former employee or official of a governmental body who wishes to close or open public access to the information may request in writing that the main personnel officer of the governmental body close or open access.

      (f) This section does not apply to a person to whom Section 552.1175 applies.

    The legislature enacted the statutory predecessors to these provisions in 1985 in response to open records decisions holding that public employees' home addresses and telephone numbers ordinarily are not protected under the privacy exceptions. (625) A sample 552.024 election form can be found in Appendix D of this handbook.

    Significant decisions of the attorney general in regard to these provisions include the following:

      Open Records Decision No. 622 (1994) -- statutory predecessor to section 552.117(a)(1) excepts employees' former home addresses and telephone numbers from required public disclosure;

      Open Records Decision No. 530 (1989) -- addressing the time at which an employee may exercise the options under the statutory predecessor to section 552.024;

      Open Records Decision No. 506 (1988) -- these provisions do not apply to telephone numbers of mobile telephones that are provided to employees by a governmental body for work purposes; and

      Open Records Decision No. 455 (1987) -- statutory predecessor to section 552.117(a)(1) continued to except an employee's home address and telephone number from required public disclosure after the employment relationship ends; it did not except, as a general rule, applicants' or other private citizens' home addresses and telephone numbers.

    In addition, the attorney general has determined in informal letter rulings that section 552.117 can apply to personal cellular telephone numbers of government employees as well as telephone numbers that provide access to personal home facsimile machines of government employees. (626)

    2. Subsections (a)(2), (3), (4), and (5): Peace Officers, Texas Department of Criminal Justice Employees, and Certain Other Law Enforcement Personnel

    Subsections (a)(2) and (a)(4) protect information pertaining to "peace officers" as defined by article 2.12 of the Code of Criminal Procedure. Subsection (a)(2) also protects information relating to "campus security personnel" employed and commissioned by the governing bodies of private institutions of higher education pursuant to section 51.212 of the Education Code. Department of Criminal Justice. Subsection (a)(4) protects such information pertaining to peace officers and other enumerated law enforcement personnel if they were killed in the line of duty. Subsection (a)(5) protects information related to commissioned security officers.

    As noted above, to obtain the protection of section 552.117, subsection (a)(1), public employees and officials must comply with the provisions of section 552.024. No action is necessary, however, on the part of the personnel listed in subsections (a)(2), (3), (4) and (5). Additionally, while subsection (a)(1) does not protect the home addresses, telephone numbers, social security numbers and family information of applicants for public employment, (627) subsections (a)(2) and (4) protect this information about peace officers who apply for peace officer positions. (628)

    In Open Records Decision No. 670 (2001), the attorney general determined that all governmental bodies may withhold the home address, home telephone number, personal cellular phone number, personal pager number, social security number and information that reveals whether the individual has family members, of any individual who meets the definition of "peace officer" set forth in article 2.12 of the Texas Code of Criminal Procedure or "security officer" in section 51.212 of the Texas Education Code, without the necessity of requesting an attorney general decision as to whether the exception under section 552.117(a)(2) applies. This decision may be relied on as a "previous determination" for the listed information. (For a discussion of "previous determinations," refer to page 30 of this handbook.)

    R. Section 552.1175: Confidentiality of Addresses, Telephone Numbers, Social Security Numbers, and Personal Family Information of Peace Officers, County Jailers, Security Officers, and Employees of Texas Department of Criminal Justice

    Section 552.1175 provides:

      (a) This section applies only to:
        (1) peace officers as defined by Article 2.12, Code of Criminal Procedure;

        (2) county jailers as defined by Section 1701.001, Occupations Code;

        (3) current or former employees of the Texas Department of Criminal Justice or of the predecessor in function of the department or any division of the department; and

        (4) commissioned security officers as defined by Section 1702.002, Occupations Code.

      (b) Information that relates to the home address, home telephone number, or social security number of an individual to whom this section applies, or that reveals whether the individual has family members is confidential and may not be disclosed to the public under this chapter if the individual to whom the information relates:
        (1) chooses to restrict public access to the information; and

        (2) notifies the governmental body of the individual's choice on a form provided by the governmental body, accompanied by evidence of the individual's status.

      (c) A choice made under Subsection (b) remains valid until rescinded in writing by the individual.

      (d) This section does not apply to information in the tax appraisal records of an appraisal district to which Section 25.025, Tax Code, applies.

      (e) All documents filed with a county clerk and all documents filed with a district clerk are exempt from this section. (629)

    This office has stated in numerous informal letter rulings that the protections of section 552.117 only apply to information that a governmental body holds in its capacity as an employer. (630) On the other hand, section 552.1175 affords peace officers, current and former employees of the Texas Department of Criminal Justice, commissioned security officers, and county jailers the opportunity to withhold personal information that is contained in records maintained by any governmental body. (631) These individuals may not, however, elect to withhold personal information that is contained in records maintained by county and district clerks. (632)

    In Open Records Decision No. 678 (2003), the Attorney General determined that notification provided to a governmental body under section 552.1175 "imparts confidentiality to information only in the possession of the notified governmental body." (633) If the information is transferred to another governmental body, the individual must provide a separate notification to the receiving governmental body in order for the information in its hands to remain confidential. (634)

    S. Section 552.118: Triplicate Prescription Form

    Section 552.118 of the Government Code excepts from required public disclosure:

      (1) information on or derived from an official prescription form filed with the director of the Department of Public Safety under Section 481.075, Health and Safety Code; or

      (2) other information collected under Section 481.075 of that code.

    Under the Triplicate Prescription Program, health practitioners who prescribe certain controlled substances must provide forms containing information about the prescription, including the name, address and age of the person for whom the controlled substance is prescribed. (635) The dispensing pharmacist is required to complete the form and provide a copy to the Department of Public Safety. (636) Section 481.076 of the Health and Safety Code provides that the department may release this information only to certain state investigators charged with investigating health professionals. Under section 552.118, the copies of the forms filed with the department, any information derived from the forms, and any other information collected under section 481.075 of the Health and Safety Code, are excepted from public disclosure.

    T. Section 552.119: Photographs of Peace Officers or Certain Security Guards

    Section 552.119(a) of the Government Code excepts from required public disclosure:

      (a) A photograph that depicts a peace officer as defined by Article 2.12, Code of Criminal Procedure, or a security officer commissioned under Section 51.212, Education Code, the release of which would endanger the life or physical safety of the officer . . . unless:
        (1) the officer is under indictment or charged with an offense by information;

        (2) the officer is a party in a fire or police civil service hearing or a case in arbitration; or

        (3) the photograph is introduced as evidence in a judicial proceeding.

    Section 552.119(a) must be read in conjunction with section 552.119(b), which provides that a photograph protected by section 552.119(a) may be released "only if the peace officer or security officer gives written consent to the disclosure."

    The attorney general has issued only two decisions construing section 552.119(a). The first, Open Records Decision No. 502 (1988), held that there need not be a threshold determination that release of a photograph would endanger an officer before the statutory predecessor to section 552.119(a) could be invoked. (637) Furthermore, the exception would apply to all photographs of peace officers unless the circumstances in the subsections occur or the officer provides a written waiver. (638) The second, Open Records Decision No. 536 (1989), concluded that the exception provided by the statutory predecessor to section 552.119 did not apply to photographs of officers who are no longer living. (639) This opinion reasoned that the section was inapplicable because its purpose was to protect peace officers from life-threatening harassment and to insure that this protection would be effective by granting the discretionary authority to release the photograph only to the subject of the photograph. (640) Protecting the photographs of deceased officers would not serve this purpose. (641)

    U. Section 552.120: Rare Books and Original Manuscripts

    Section 552.120 of the Government Code excepts from required public disclosure:

      A rare book or original manuscript that was not created or maintained in the conduct of official business of a governmental body and that is held by a private or public archival and manuscript repository for the purpose of historical research . . . .

    The attorney general has not yet issued an open records decision on this provision. A similar provision applicable to state institutions of higher education is found in the Education Code:

      Rare books, original manuscripts, personal papers, unpublished letters, and audio and video tapes held by an institution of higher education for the purposes of historical research are confidential, and the institution may restrict access by the public to those materials to protect the actual or potential value of the materials and the privacy of the donors. (642)

    V. Section 552.121: Certain Documents Held for Historical Research

    Section 552.121 of the Government Code excepts from required public disclosure:

      An oral history interview, personal paper, unpublished letter, or organizational record of a nongovernmental entity that was not created or maintained in the conduct of official business of a governmental body and that is held by a private or public archival and manuscript repository for the purpose of historical research . . . to the extent that the archival and manuscript repository and the donor of the interview, paper, letter, or record agree to limit disclosure of the item.

    The attorney general has not yet issued an open records decision on this provision. The Education Code sets out a similar provision applicable to institutions of higher education. It states as follows:

      An oral interview that is obtained for historical purposes by an agreement of confidentiality between an interviewee and a state institution of higher education is not public information. The interview becomes public information when the conditions of the agreement of confidentiality have been met. (643)

    An attorney general opinion requested by a committee of the legislature that enacted section 51.910(a) states that the Public Information Act prevents an institution of higher education from agreeing to keep oral history information confidential unless the institution has specific authority under law to make such agreements. (644)

    W. Section 552.122: Test Items

    Section 552.122 of the Government Code excepts the following from required public disclosure:

      (a) A test item developed by an educational institution that is funded wholly or in part by state revenue . . . [; and]

      (b) A test item developed by a licensing agency or governmental body . . . .

    The attorney general considered the scope of the phrase "test items" in Open Records Decision No. 626 (1994). That decision considered whether employee evaluations and records used for determining promotions were "test items" under section 552.122(b). "Test item" was defined as "any standard means by which an individual's or group's knowledge or ability in a particular area is evaluated." (645) The opinion held that in this instance the evaluations of the applicant for promotion and the answers to questions asked of the applicant by the promotion board in evaluating the applicant were not "test items" and that such a determination under section 552.122 had to be made on a case-by-case basis. (646)

    X. Section 552.123: Names of Applicants for Chief Executive Officer of Institutions of Higher Education

    Section 552.123 of the Government Code excepts from required public disclosure:

      The name of an applicant for the position of chief executive officer of an institution of higher education . . . , except that the governing body of the institution must give public notice of the name or names of the finalists being considered for the position at least 21 days before the date of the meeting at which final action or vote is to be taken on the employment of the person.

    Section 552.123 permits the withholding of any identifying information about candidates, not just their names. (647) Before the addition of the statutory predecessor to section 552.123, the names of all persons being considered for public positions were available under the Public Information Act. (648) The addition of this section changed the law only in respect to applicants for the position of university president. (649) The exception protects the identity of all applicants for the position of university president, whether they apply on their own initiative or are nominated. (650) Section 552.123 does not protect the names of finalists for the university president position.

    Y. Section 552.1235: Identity of Private Donor to Institution of Higher Education

    The Seventy-eighth Legislature added section 552.1235 of the Government Code, which provides:

      (a) The name or other information that would tend to disclose the identity of a person, other than a governmental body, who makes a gift, grant, or donation of money or property to an institution of higher education or to another person with the intent that the money or property be transferred to an institution of higher education is excepted from the requirements of Section 552.021.

      (b) Subsection (a) does not except from required disclosure other information relating to gifts, grants, and donations described by Subsection (a), including the amount or value of an individual gift, grant, or donation.

      (c) In this section, "institution of higher education" has the meaning assigned by Section 61.003, Education Code. (651)

    There are no cases or formal opinions interpreting this exception.

    Z. Section 552.124: Records of Library or Library System

    Section 552.124 excepts from required public disclosure:

      (a) A record of a library or library system, supported in whole or in part by public funds, that identifies or serves to identify a person who requested, obtained, or used a library material or service . . . unless the record is disclosed:
        (A) because the library or library system determines that disclosure is reasonably necessary for the operation of the library or library system and the record is not confidential under other state or federal law;

        (B) under Section 552.023; or

        (C) to a law enforcement agency or a prosecutor under a court order or subpoena obtained after a showing to a district court that:

          (1) disclosure of the record is necessary to protect the public safety; or

          (2) the record is evidence of an offense or constitutes evidence that a particular person committed an offense.

      (b) A record of a library or library system that is excepted from required disclosure under this section is confidential.

    The legislative history suggests that the purpose of this section is to codify, clarify and extend a prior decision of the attorney general. (652) This section protects the identity of the individual library user while allowing law enforcement officials access to such information by court order or subpoena. An individual has a special right of access under section 552.023 to library records that relate to that individual. There are no cases or formal opinions interpreting this exception. However, in an informal ruling, the attorney general interpreted section 552.124 to except from disclosure any information that specifically identifies library patrons. (653) In a separate letter ruling, the attorney general determined that section 552.124 does not except from disclosure information identifying library employees or other persons not requesting, obtaining or using a library material or service. (654)

    AA. Section 552.125: Certain Audits

    Section 552.125 provides:

      [a]ny documents or information privileged under the Texas Environmental, Health, and Safety Audit Privilege Act are excepted from the requirements of Section 552.021.

    Information considered privileged under the Texas Environmental, Health, and Safety Audit Privilege Act includes audit reports. (655) Section 4 of article 4447cc of the Revised Civil Statutes describes an audit report as "a report that includes each document and communication . . . produced from an environmental or health and safety audit." (656) An environmental or health and safety audit is defined under section 3 of article 4447cc as:

      a systematic voluntary evaluation, review, or assessment of compliance with environmental or health and safety laws or any permit issued under those laws conducted by an owner or operator, an employee of the owner or operator, or an independent contractor of:
      (a) a . . . facility or operation [regulated under an environmental or health and safety law]; or

      (b) an activity at a . . . facility or operation [regulated under an environmental or health and safety law]. (657)

    There are no cases or formal opinions interpreting section 552.125.

    BB. Section 552.126: Name of Applicant for Superintendent of Public School District

    Section 552.126 provides that:

      The name of an applicant for the position of superintendent of a public school district is excepted from the requirements of Section 552.021, except that the board of trustees must give public notice of the name or names of the finalists being considered for the position at least 21 days before the date of the meeting at which a final action or vote is to be taken on the employment of the person.

    There are no cases or formal opinions interpreting this exception. An informal ruling, Open Records Letter No. 99-2495 (1999), applied section 552.126. In that ruling, the attorney general determined that section 552.126 protects all identifying information about superintendent applicants, not just their names. Section 552.126 does not protect the names of the finalists for a superintendent position.

    CC. Section 552.127: Personal Information Relating to Participants in Neighborhood Crime Watch Organization

    Section 552.127 provides as follows:

      (a) Information is excepted from [required public disclosure] if the information identifies a person as a participant in a neighborhood crime watch organization and relates to the name, home address, business address, home telephone number, or business telephone number of the person.

      (b) In this section, "neighborhood crime watch organization" means a group of residents of a neighborhood or part of a neighborhood that is formed in affiliation or association with a law enforcement agency in this state to observe activities within the neighborhood or part of a neighborhood and to take other actions intended to reduce crime in that area.

    There are no cases or formal opinions interpreting this exception. In an informal ruling, the attorney general found that section 552.127 excepts from disclosure the name, home address, business address, home telephone number, or business telephone number of individual participants in a neighborhood crime watch program. (658) However, the attorney general also found that the name, address, or contact information of an organization participating in the neighborhood crime watch program is not protected under section 552.127 unless the information relates to or identifies an individual participant's name, home and business address, or home and business telephone number. (659)

    DD. Section 552.128: Certain Information Submitted by Potential Vendor or Contractor

    Section 552.128 provides as follows:

      (a) Information submitted by a potential vendor or contractor to a governmental body in connection with an application for certification as a historically underutilized or disadvantaged business under a local, state, or federal certification program is excepted from [required public disclosure], except as provided by this section.

      (b) Notwithstanding Section 552.007 and except as provided by Subsection (c), the information may be disclosed only:

        (1) to a state or local governmental entity in this state, and the state or local governmental entity may use the information only:
          (A) for purposes related to verifying an applicant's status as a historically underutilized or disadvantaged business; or

          (B) for the purpose of conducting a study of a public purchasing program established under state law for historically underutilized or disadvantaged businesses; or

        (2) with the express written permission of the applicant or the applicant's agent.
      (c) Information submitted by a vendor or contractor or a potential vendor or contractor to a governmental body in connection with a specific proposed contractual relationship, a specific contract, or an application to be placed on a bidders list, including information that may also have been submitted in connection with an application for certification as a historically underutilized or disadvantaged business, is subject to required disclosure, excepted from required disclosure, or confidential in accordance with other law.

    There are no cases or formal opinions interpreting this exception. However, the attorney general has determined that the exception does not apply to documents created by the governmental body rather than submitted by the potential vendor or contractor. (660) Additionally, the exception may cover information submitted orally by an applicant. (661) Subsection (c) of the exception does not make confidential a potential contractor's bid proposals, but states that bidding information is subject to public disclosure unless made confidential by law. (662)

    EE. Section 552.129: Motor Vehicle Inspection Information

    Section 552.129 provides as follows:

      A record created during a motor vehicle emissions inspection under Subchapter F, Chapter 548, Transportation Code, that relates to an individual vehicle or owner of an individual vehicle is excepted from [required public disclosure].

    There are no cases or formal opinions interpreting this exception.

    FF. Section 552.130: Motor Vehicle Records

    Section 552.130 provides as follows:

      (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.

      (b) Information described by Subsection (a) may be released only if, and in the manner, authorized by Chapter 730, Transportation Code.

    Examples of information excepted from required public disclosure under section 552.130(a)(1) include the license number, class, restrictions and expiration date of a driver's license issued by an agency of the State of Texas. (663) Examples of information excepted from disclosure under section 552.130(a)(2) include a vehicle identification number and license plate number relating to a title or registration issued by an agency of the State of Texas. (664) Information relating to a license, title or registration issued by a state other than Texas is not excepted from disclosure under section 552.130.

    Information otherwise protected under section 552.130 may be released if the governmental body is authorized to release the information under chapter 730 of the Transportation Code. Section 552.222(c) of the Government Code permits the officer for public information or the officer's agent to require the requestor to provide additional identifying information sufficient for the officer or the officer's agent to determine whether the requestor is eligible to receive the information under chapter 730 of the Transportation Code. There are no cases or formal opinions interpreting this exception.

    GG. Section 552.131:  Information Relating to Economic Development Negotiations

    Section 552.131 reads as follows:

      (a) Information is excepted from the requirements of Section 552.021 if the information relates to economic development negotiations involving a govern-mental body and a business prospect that the governmental body seeks to have locate, stay, or expand in or near the territory of the governmental body and the information relates to:
        (1) a trade secret of the business prospect; or

        (2) commercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained.

      (b) Unless and until an agreement is made with the business prospect, information about a financial or other incentive being offered to the business prospect by the governmental body or by another person is excepted from the requirements of Section 552.021.

      (c) After an agreement is made with the business prospect, this section does not except from the requirements of Section 552.021 information about a financial or other incentive being offered to the business prospect:

        (1) by the governmental body; or

        (2) by another person, if the financial or other incentive may directly or indirectly result in the expenditure of public funds by a governmental body or a reduction in revenue received by a governmental body from any source.

    Section 552.131(a) applies to the same two kinds of information excepted from disclosure under section 552.110; 1) trade secrets; or 2) commercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained. However, unlike section 552.110, section 552.131(a) applies only to information that relates to economic development negotiations between a governmental body and a business prospect. Section 552.131(b) excepts from public disclosure any information relating to a financial or other incentive offered to a business prospect by a governmental body or another person. After the governmental body reaches an agreement with the business prospect, information about a financial or other incentive offered the business prospect is no longer excepted under section 552.131. There are no cases or opinions interpreting this exception.

    HH. Section 552.132: Crime Victim Compensation Information

    Section 552.132 provides as follows:

      (a) Except as provided by Subsection (f), in this section, "crime victim" means a victim under Subchapter B, Chapter 56, Code of Criminal Procedure, who has filed an application for compensation under that subchapter.

      (b) A crime victim may elect whether to allow public access to information held by the crime victim's compensation division of the attorney general's office that relates to:

        (1) the name, social security number, address, or telephone number of the crime victim; or

        (2) any other information the disclosure of which would identify or tend to identify the crime victim.

      (c) An election under Subsection (b) must be:
        (1) made in writing on a form developed by the attorney general for that purpose and signed by the crime victim; and

        (2) filed with the crime victims' compensation division before the third anniversary of the date that the crime victim filed the application for compensation.

      (d) If the crime victim elects not to allow public access to the information, the information is excepted from the requirements of Section 552.021. If the crime victim does not make an election under Subsection (b) or (f) or elects to allow public access to the information, the information is not excepted from the requirements of Section 552.021 unless the information is made confidential or excepted from those requirements by another law.

      (e) If the crime victim is awarded compensation under Section 56.34, Code of Criminal Procedure, as of the date of the award of compensation, the name of the crime victim and the amount of compensation awarded to that victim are public information and are not excepted from the requirements of Section 552.021.

      (f) An employee of a governmental body who is also a crime victim under Subchapter B, Chapter 56, Code of Criminal Procedure, regardless of whether the employee has filed an application for compensation under that subchapter, may elect whether to allow public access to information held by the attorney general's office or other governmental body that would identify or tend to identify the crime victim, including a photograph or other visual representation of the victim. An election under this subsection must be made in writing on a form developed by the governmental body, be signed by the employee, and be filed with the governmental body before the third anniversary of the latest to occur of one of the following: (1) the date the crime was committed; (2) the date employment begins; or (3) the date the governmental body develops the form and provides it to employees. If the employee fails to make an election, the identifying information is excepted from disclosure until the third anniversary of the date the crime was committed. In case of disability, impairment, or other incapacity of the employee, the election may be made by the guardian of the employee or former employee. (665)

    There are no cases or formal opinions interpreting this exception. However, the attorney general has interpreted this exception in several informal rulings. (666) The attorney general interprets section 552.132(b) to afford crime victims three years from the date of filing an application for compensation to submit an election for disclosure or non-disclosure. Crime victims electing under section 552.132(f) must do so before the third anniversary of the latest to occur of one of the following: (1) the date the crime was committed; (2) the date employment begins; or (3) the date the governmental body develops the form and provides it to employees. Until the time limits set above have passed, the information described in subsections 552.132(b) and 552.132(f) is excepted from disclosure as long as the crime victim has not elected to allow public access to the information. If the crime victim elects to allow public access to the information described in subsections 552.132(b) and 552.132(f), the information is not excepted from disclosure under section 552.132. Likewise, if the crime victim fails to make an election within the established time periods, the information described in subsections 552.132(b) and 552.132(f) may not be withheld under this exception. The attorney general has also found that crime victims have a special right of access to their own information under section 552.023 of the Government Code. (667)

    If you are or have been a crime victims' compensation applicant and wish to make the election under section 552.132(b), you should contact:

      Office of the Attorney General
      Crime Victims' Compensation Division
      P.O. Box 12548
      Austin, Texas 78711-2548
      In Austin: (512) 936-1200
      Toll-free: (800) 983-9933

    II. Section 552.1325: Crime Victim Impact Statement

    Section 552.1325 provides:

      (a) In this section:
        (1) "Crime victim" means a person who is a victim as defined by Article 56.32, Code of Criminal Procedure.

        (2) "Victim impact statement" means a victim impact statement under Article 56.03, Code of Criminal Procedure.

      (b) The following information that is held by a governmental body or filed with a court and that is contained in a victim impact statement or was submitted for purposes of preparing a victim impact statement is confidential:
        (1) the name, social security number, address, and telephone number of a crime victim; and

        (2) any other information the disclosure of which would identify or tend to identify the crime victim. (668)

    There are no cases or formal opinions interpreting this exception.

    JJ. Section 552.133: Public Power Utility Information Related to Competitive Matters

    Section 552.133 provides:

      (a) In this section:
        (1) "Public power utility" means an entity providing electric or gas utility services that is subject to the provisions of this chapter.

        (2) "Public power utility governing body" means the board of trustees or other applicable governing body, including a city council, of a public power utility.

        (3) "Competitive matter" means a utility-related matter that the public power utility governing body in good faith determines by a vote under this section is related to the public power utility's competitive activity, including commercial information, and would, if disclosed, give advantage to competitors or prospective competitors but may not be deemed to include the following categories of information:

          (A) information relating to the provision of distribution access service, including the terms and conditions of the service and the rates charged for the service but not including information concerning utility-related services or products that are competitive;

          (B) information relating to the provision of trans-mission service that is required to be filed with the Public Utility Commission of Texas, subject to any confidentiality provided for under the rules of the commission;

          (C) information for the distribution system pertaining to reliability and continuity of service, to the extent not security-sensitive, that relates to emergency management, identification of critical loads such as hospitals and police, records of interruption, and distribution feeder standards;

          (D) any substantive rule of general applicability regarding service offerings, service regulation, customer protections, or customer service adopted by the public power utility as authorized by law;

          (E) aggregate information reflecting receipts or expenditures of funds of the public power utility, of the type that would be included in audited financial statements;

          (F) information relating to equal employment opportunities for minority groups, as filed with local, state, or federal agencies;

          (G) information relating to the public power utility's performance in contracting with minority business entities;

          (H) information relating to nuclear decommissioning trust agree-ments, of the type required to be included in audited financial statements;

          (I) information relating to the amount and timing of any transfer to an owning city's general fund;

          (J) information relating to environmental compliance as required to be filed with any local, state, or national environmental authority, subject to any confidentiality provided under the rules of those authorities;

          (K) names of public officers of the public power utility and the voting records of those officers for all matters other than those within the scope of a competitive resolution provided for by this section;

          (L) a description of the public power utility's central and field organization, including the established places at which the public may obtain information, submit information and requests, or obtain decisions and the identification of employees from whom the public may obtain information, submit information or requests, or obtain decisions; or

          (M) information identifying the general course and method by which the public power utility's functions are channeled and determined, including the nature and requirements of all formal and informal policies and procedures.

      (b) Information or records are excepted from the requirements of Section 552.021 if the information or records are reasonably related to a competitive matter, as defined in this section. Excepted information or records include the text of any resolution of the public power utility governing body determining which issues, activities, or matters constitute competitive matters. Information or records of a municipally owned utility that are reasonably related to a competitive matter are not subject to disclosure under this chapter, whether or not, under the Utilities Code, the municipally owned utility has adopted customer choice or serves in a multiply certificated service area. This section does not limit the right of a public power utility governing body to withhold from disclosure information deemed to be within the scope of any other exception provided for in this chapter, subject to the provisions of this chapter.

      (c) In connection with any request for an opinion of the attorney general under Section 552.301 with respect to information alleged to fall under this exception, in rendering a written opinion under Section 552.306 the attorney general shall find the requested information to be outside the scope of this exception only if the attorney general determines, based on the information provided in connection with the request:

        (1) that the public power utility governing body has failed to act in good faith in making the determination that the issue, matter, or activity in question is a competitive matter; or

        (2) that the information or records sought to be withheld are not reasonably related to a competitive matter.

      (d) The requirement of Section 552.022 that a category of information listed under Section 552.022(a) is public information and not excepted from required disclosure under this chapter unless expressly confidential under law does not apply to information that is excepted from required disclosure under this section.

    Section 552.133 excepts from disclosure a public power utility's information related to a competitive matter. The exception defines "competitive matter" as a utility-related matter that the public power utility's governing body in good faith determines by vote to be related to the public power utility's competitive activity. In order to be "utility-related," the matter must relate to the public power utility's electric or gas utility services. The governing body must also, in like manner, determine that the release of the information would give an advantage to competitors or prospective competitors. Similarly, section 552.104 of the Government Code protects from public disclosure information that if released would possibly cause harm to a governmental body's marketplace interests. (For a discussion of section 552.104, refer to page 78 of this handbook.) Section 552.133 lists thirteen categories of information that may not be deemed competitive matters. The attorney general must find section 552.133 is inapplicable to requested information only if, based on the information provided, the attorney general determines that the public power utility governing body has not acted in good faith in determining that the issue, matter or activity is a competitive matter or that the information requested is not reasonably related to a competitive matter. In Open Records Decision No. 666, the attorney general determined that a municipality may disclose information pertaining to a municipally owned power utility to a municipally-appointed citizen advisory board without waiving its right to assert section 552.133 in response to a future public request for information. (669)

    KK. Section 552.134: Certain Information Relating to Inmate of Department of Criminal Justice

    Section 552.134 reads as follows:

      (a) Except as provided by Subsection (b) or by Section 552.029, information obtained or maintained by the Texas Department of Criminal Justice is excepted from the requirements of Section 552.021 if it is information about an inmate who is confined in a facility operated by or under a contract with the department.

      (b) Subsection (a) does not apply to:

        (1) statistical or other aggregated information relating to inmates confined in one or more facilities operated by or under a contract with the department; or

        (2) information about an inmate sentenced to death.

      (c) This section does not affect whether information is considered confidential or privileged under Section 508.313.

      (d) A release of information described by Subsection (a) to an eligible entity, as defined by Section 508.313(d), for a purpose related to law enforcement, prosecution, corrections, clemency, or treatment is not considered a release of information to the public for purposes of Section 552.007 and does not waive the right to assert in the future that the information is excepted from required disclosure under this section or other law.

    This section should be read with two other provisions concerning the required public disclosure of Department of Criminal Justice information, sections 552.029 and 508.313 of the Government Code. Section 508.313 of the Government Code generally makes confidential all information the Texas Department of Criminal Justice obtains and maintains about certain classes of inmates, including an inmate of the institutional division subject to release on parole, release to mandatory supervision, or executive clemency. Section 508.313 also applies to information about a releasee and a person directly identified in any proposed plan of release for an inmate. Section 508.313 permits the release of the information it covers to the governor, a member of the Board of Pardons and Paroles, the Criminal Justice Policy Council, or an eligible entity requesting information for a law enforcement, prosecutorial, correctional, clemency or treatment purpose. (670) Thus, both sections 552.134 and 508.313 make certain information confidential. On the other hand, section 552.029 of the Government Code provides that certain specified information cannot be withheld under sections 552.134 and 508.313. Section 552.029 reads as follows:

      Notwithstanding Section 508.313 or 552.134, the following information about an inmate who is confined in a facility operated by or under a contract with the Texas Department of Criminal Justice is subject to required disclosure under Section 552.021:

      (1) the inmate's name, identification number, age, birthplace, physical description, or general state of health or the nature of an injury to or critical illness suffered by the inmate;

      (2) the inmate's assigned unit or the date on which the unit received the inmate, unless disclosure of the information would violate federal law relating to the confidentiality of substance abuse treatment;

      (3) the offense for which the inmate was convicted or the judgment and sentence for that offense;

      (4) the county and court in which the inmate was convicted;

      (5) the inmate's earliest or latest possible release dates;

      (6) the inmate's parole date or earliest possible parole date;

      (7) any prior confinement of the inmate by the Texas Department of Criminal Justice or its predecessor; or

      (8) basic information regarding the death of an inmate in custody, an incident involving the use of force, or an alleged crime involving the inmate.

    The Texas Department of Criminal Justice has the discretion to release information otherwise protected under section 552.134 to voter registrars for the purpose of maintaining accurate voter registration lists. (671) (For a discussion of intra- and interagency transfers of information refer to discussion beginning on page 28 of this handbook).

    LL. Section 552.135: School District Informers

    This section provides as follows:

      (a) "Informer" means a student or a former student or an employee or former employee of a school district who has furnished a report of another person's possible violation of criminal, civil, or regulatory law to the school district or the proper regulatory enforcement authority.

      (b) An informer's name or information that would substantially reveal the identity of an informer is excepted from the requirements of Section 552.021.

      (c) Subsection (b) does not apply:

        (1) if the informer is a student or former student, and the student or former student, or the legal guardian, or spouse of the student or former student consents to disclosure of the student's or former student's name; or

        (2) if the informer is an employee or former employee who consents to disclosure of the employee's or former employee's name; or

        (3) if the informer planned, initiated, or participated in the possible violation.

      (d) Information excepted under Subsection (b) may be made available to a law enforcement agency or prosecutor for official purposes of the agency or prosecutor upon proper request made in compliance with applicable law and procedure.

      (e) This section does not infringe on or impair the confidentiality of information considered to be confidential by law, whether it be constitutional, statutory, or by judicial decision, including information excepted from the requirements of Section 552.021.

    Unlike the informer's privilege aspect of section 552.101, this exception for school district informers may apply in situations in which noncriminal activity is reported. (See page 70 for a discussion of the informer's privilege under section 552.101.) A school district that seeks to withhold information under this exception must clearly identify to this office the specific civil, criminal or regulatory law that is alleged to have been violated. (672) The school district must also identify the individual who reported the alleged violation of the law. There are no cases or formal opinions interpreting this exception.

    MM. Section 552.136: Confidentiality of Credit Card, Debit Card, Charge Card and Access Device Numbers

    Section 552.136 provides:

      (a) In this section, "access device" means a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to:
        (1) obtain money, goods, services, or another thing of value; or

        (2) initiate a transfer of funds other than a transfer originated solely by paper instrument.

      (b) Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential.

    There are no cases or formal opinions interpreting this exception. However, in informal rulings, the attorney general has interpreted this exception to include bank account numbers collected, assembled or maintained by or for governmental bodies. (673)

    NN. Section 552.137: Confidentiality of Certain E-Mail Addresses

    Section 552.137 provides:

      (a) Except as otherwise provided by this section, an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under this chapter.

      (b) Confidential information described by this section that relates to a member of the public may be disclosed if the member of the public affirmatively consents to its release.

      (c) Subsection (a) does not apply to an e-mail address:

        (1) provided to a governmental body by a person who has a contractual relationship with the governmental body or by the contractor's agent;

        (2) provided to a governmental body by a vendor who seeks to contract with the governmental body or by the vendor's agent;

        (3) contained in a response to a request for bids or proposals, contained in a response to similar invitations soliciting offers or information relating to a potential contract, or provided to a governmental body in the course of negotiating the terms of a contract or potential contract; or

        (4) provided to a governmental body on a letterhead, coversheet, printed document, or other document made available to the public.

      (d) Subsection (a) does not prevent a governmental body from disclosing an e-mail address for any reason to another governmental body or to a federal agency.

    This section was amended by the Seventy-eighth Legislature. (674) The Legislature also repealed the same exception at section 552.136 of the Government Code. (675) In addition to the exceptions found in section 552.137(c), the attorney general has determined that section 552.137 does not protect a government employee's work e-mail address or a business's general e-mail address or Web site address. (676) There are no cases or formal opinions interpreting this exception.

    OO. Section 552.138: Family Violence Shelter Center and Sexual Assault Program Information

    Section 552.138 provides:

      (a) In this section:
        (1) "Family violence shelter center" has the meaning assigned by Section 51.002, Human Resources Code.

        (2) "Sexual assault program" has the meaning assigned by Section 420.003.

      (b) Information maintained by a family violence shelter center or sexual assault program is excepted from the requirements of Section 552.021 if it is information that relates to:
        (1) the home address, home telephone number, or social security number of an employee or a volunteer worker of a family violence shelter center or a sexual assault program, regardless of whether the employee or worker complies with Section 552.024;

        (2) the location or physical layout of a family violence shelter center;

        (3) the name, home address, home telephone number, or numeric identifier of a current or former client of a family violence shelter center or sexual assault program;

        (4) the provision of services, including counseling and sheltering, to a current or former client of a family violence shelter center or sexual assault program;

        (5) the name, home address, or home telephone number of a private donor to a family violence shelter center or sexual assault program; or

        (6) the home address or home telephone number of a member of the board of directors or the board of trustees of a family violence shelter center or sexual assault program, regardless of whether the board member complies with Section 552.024.

    This section was renumbered as section 552.138 by House Bill 3506. (677) There are no cases or formal opinions interpreting this exception.

    PP. Section 552.139: Government Information Related to Security Issues for Computers

    Section 552.139, also renumbered by House Bill 3506, (678) provides:

      (a) Information is excepted from the requirements of Section 552.021 if it is information that relates to computer network security or to the design, operation, or defense of a computer network.

      (b) The following information is confidential:

        (1) a computer network vulnerability report; and

        (2) any other assessment of the extent to which data processing operations, a computer, or a computer program, network, system, or software of a governmental body or of a contractor of a governmental body is vulnerable to unauthorized access or harm, including an assessment of the extent to which the governmental body's or contractor's electronically stored information is vulnerable to alteration, damage, or erasure.

    There are no cases or formal opinions interpreting this exception.

    QQ. Section 552.140: Military Discharge Records

    The Seventy-eighth Legislature added section 552.140, which provides:

      (a) This section applies only to a military veteran's Department of Defense Form DD-214 or other military discharge record that is first recorded with or that otherwise first comes into the possession of a governmental body on or after September 1, 2003.

      (b) The record is confidential for the 75 years following the date it is recorded with or otherwise first comes into the possession of a governmental body. During that period the governmental body may permit inspection or copying of the record or disclose information contained in the record only in accordance with this section or in accordance with a court order.

      (c) On request and the presentation of proper identification, the following persons may inspect the military discharge record or obtain from the governmental body free of charge a copy or certified copy of the record:

        (1) the veteran who is the subject of the record;

        (2) the legal guardian of the veteran;

        (3) the spouse or a child or parent of the veteran or, if there is no living spouse, child, or parent, the nearest living relative of the veteran;

        (4) the personal representative of the estate of the veteran;

        (5) the person named by the veteran, or by a person described by Subdivision (2), (3), or (4), in an appropriate power of attorney executed in accordance with Section 490, Chapter XII, Texas Probate Code; or

        (6) another governmental body.

      (d) A court that orders the release of information under this section shall limit the further disclosure of the information and the purposes for which the information may be used.

      (e) A governmental body that obtains information from the record shall limit the governmental body's use and disclosure of the information to the purpose for which the information was obtained. (679)

    There are no cases or formal opinions interpreting this exception.

    RR. Section 552.141: Information in Application for Marriage License

    The Seventy-eighth Legislature added three new sections as sections 552.141. Section 552.141 as added by Senate Bill 174 provides:

      (a) Information that relates to the social security number of an individual that is maintained by a county clerk and that is on an application for a marriage license, including information in an application on behalf of an absent applicant and the affidavit of an absent applicant, or is on a document submitted with an application for a marriage license is confidential and may not be disclosed by the county clerk to the public under this chapter.

      (b) If the county clerk receives a request to make information in a marriage license application available under this chapter, the county clerk shall redact the portion of the application that contains an individuals' social security number and release the remainder of the information in the application. (680)

    This exception applies only to an application for a marriage license that is filed on or after September 1, 2003. (681) There are no cases or formal opinions interpreting this exception.

    SS. Section 552.141: Working Papers of Administrative Law Judges at State Office of Administrative Hearings

    Section 552.141 as added by Senate Bill 1147 provides:

      The following working papers of an administrative law judge at the State Office of Administrative Hearings are excepted from the requirements of Section 552.021:
      (1) notes recording the observations, thoughts, or impressions of an administrative law judge;

      (2) drafts of a proposal for decision;

      (3) drafts of orders made in connection with conducting contested case hearings; and

      (4) drafts of orders made in connection with conducting alternative dispute resolution procedures. (682)

    There are no cases or formal opinions interpreting this exception.

    TT. Section 552.141: Texas No-Call List

    Section 552.141 as added by House Bill 149 provides:

      The Texas no-call list created under Subchapter C, Chapter 43, Business & Commerce Code, as added by Chapter 1429, Acts of the 77th Legislature, Regular Session, 2001, is excepted from the requirements of Section 552.021. (683)

    There are no cases or formal opinions interpreting this exception.

    UU. Section 552.142: Records of Certain Deferred Adjudications

    The Seventy-eighth Legislature added section 552.142 which provides:

      (a) Information is excepted from the requirements of Section 552.021 if an order of nondisclosure with respect to the information has been issued under Section 411.081(d).

      (b) A person who is the subject of information that is excepted from the requirements of Section 552.021 under this section may deny the occurrence of the arrest and prosecution to which the information relates and the exception of the information under this section, unless the information is being used against the person in a subsequent criminal proceeding. (684)

    There are no cases or formal opinions interpreting this exception.

    VV. Section 552.1425: Civil Penalty for Records of Certain Deferred Adjudications

    The Seventy-eighth Legislature added section 552.1425 which provides:

      (a) A private entity that compiles and disseminates for compensation criminal history record information may not compile or disseminate information with respect to which an order of nondisclosure has been issued under Section 411.081(d).

      (b) A district court may issue a warning to a private entity for a first violation of Subsection (a). After receiving a warning for the first violation, the private entity is liable to the state for a civil penalty not to exceed $500 for each subsequent violation.

      (c) The attorney general or an appropriate prosecuting attorney may sue to collect a civil penalty under this section.

      (d) A civil penalty collected under this section shall be deposited in the state treasury to the credit of the general revenue fund. (685)

    There are no cases or formal opinions interpreting this exception.


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    Endnotes

    291. Gov't Code � 552.352(b), (c).
    292. Id. � 552.007; see Dominguez v. Gilbert, 48 S.W.3d 789, 793 (Tex. App.--Austin 2001, no pet.).
    293. See Gov't Code � 552.007; Dominguez, 48 S.W.3d at 793. But see discussion of informer's privilege beginning on page 70 of this handbook.
    294. See Open Records Decision Nos. 455 at 3 (1987), 325 at 1 (1982).
    295. Attorney General Opinion H-258 at 3 (1974); see Attorney General Opinions JM-672 at 1-2 (1987), JM-37 at 2 (1983); Open Records Decision Nos. 585 at 2 (1991), 514 at 1 (1988), 55A at 2 (1975).
    296. See Attorney General Opinion JM-672 at 2 (1987); Open Records Decision No. 514 at 1 (1988).
    297. See Open Records Decision No. 114 at 1 (1975).
    298. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976), cert. denied, 430 U.S. 931 (1977); Envoy Med. Sys. v. State, 108 S.W.3d 333, 337 (Tex. App.--Austin 2003, no pet.); Open Records Decision No. 594 at 3 (1991).
    299. See Open Records Decision No. 478 at 2 (1987).
    300. See, e.g., Open Records Decision No. 465 at 4-5 (1987).
    301. Occ. Code � 56.001.
    302. Id. � 159.002(b).
    303. Fam. Code � 261.201(a).
    304. Health & Safety Code � 773.091.
    305. Id. � 611.002.
    306. Util. Code � 182.052.
    307. Gov't Code � 815.503.
    308. See 45 C.F.R. Pts. 160, 164.
    309. The Seventy-sixth Legislature amended section 154.073 of the Civil Practice and Remedies Code by adding subsection (d), which provides that a final written agreement to which a governmental body subject to the Act is a signatory and that was reached as a result of a dispute resolution procedure conducted under chapter 154 of that code is subject to or excepted from required disclosure in accordance with the Act. Act of May 30, 1999, 76th Leg., R.S., ch. 1352, � 6, 1999 Tex. Gen. Laws 4578, 4582; see Gov't Code � 552.022(a)(18) (a settlement agreement to which a governmental body is a party may not be withheld unless it is confidential under other law).
    310. See Open Records Decision No. 622 at 3-4 (1994) (concluding that certain social security numbers are confidential under federal law); see also Open Records Decision No. 226 at 2 (1979) (concluding that 26 U.S.C. �� 6103(a), (b), 7213 require state governmental body to withhold certain requested federal income tax information). Additionally, state law makes confidential the social security number of an applicant for or holder of a license, certificate of registration or other legal authorization issued by a licensing agency to practice in a specific occupation or profession that is provided to the licensing agency. Occ. Code � 56.001.
    311. Attorney General Opinion MW-95 at 2 (1979); Open Records Decision No. 124 at 1 (1976).
    312. See Open Records Decision No. 561 at 6-7 (1990); accord United States v. Napper, 887 F.2d 1528, 1530 (11th Cir. 1989) (finding that documents Federal Bureau of Investigation had lent to city police department remained property of Bureau and were subject to any restrictions on dissemination of Bureau-placed documents).
    313. 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).
    314. Id. at 685; see Open Records Decision No. 569 (1999).
    315. See Open Records Decision No. 455 (1987).
    316. But see Gov't Code �� 552.117(a)(1) (excepting social security number of current or former official or employee of governmental body, but only to extent that former officials and employees have elected to keep this information confidential in compliance with section 552.024), .117(a)(2) (excepting social security number of peace officer as defined by article 2.12 of Code of Criminal Procedure, or security officer commissioned under section 51.212 of Education Code), .117(a)(3) (excepting social security number of current or former employee of Texas Department of Criminal Justice), .117(a)(4) (excepting social security number of certain officers killed in the line of duty, regardless of whether the deceased complied with section 552.024), .117(a)(5) (excepting social security number of commissioned security officer as defined by section 1702.022 of the Occupations Code), .1175 (excepting social security numbers of peace officers, county jailers, current or former employees of the Texas Department of Criminal Justice, and commissioned security officers upon proper notification); Occ. Code � 56.001 (excepting social security number of applicant for or holder of license, certificate of registration or other legal authorization issued by licensing agency to practice in specific occupation or profession that is provided to a licensing agency); see also Attorney General Opinion DM-286 (1994) (concluding that certain federal statutes govern when governmental body may request individual's social security number); Open Records Decision No. 622 (1994) (concluding that certain social security numbers are confidential under federal law).
    317. See Open Records Decision No. 339 at 2 (1982).
    318. Open Records Decision No. 409 at 2 (1984); see also Open Records Decision Nos. 628 (1994) (concluding that identities of juvenile victims of crime are not per se protected from disclosure by common-law privacy), 611 (1992) (determining whether records held by law-enforcement agency regarding violence between family members are confidential under doctrine of common-law privacy must be done on case-by-case basis). But see Gov't Code � 552.132 (excepting information about certain crime victims).
    319. 915 S.W.2d 471 (Tex. 1995).
    320. 834 S.W.2d 54 (Tex. 1992).
    321. 840 S.W.2d 519, 524-25 (Tex. App.--El Paso 1992, writ denied).
    322. See Open Records Decision Nos. 590 at 3 (1991), 523 at 3-4 (1989).
    323. See Open Records Decision No. 385 at 2 (1983).
    324. See Open Records Decision No. 600 at 9 (1992).
    325. See Open Records Decision No. 545 at 3-5 (1990).
    326. See, e.g., Open Records Decision Nos. 523 at 3-4 (1989), 385 at 2 (1983) (concluding that public hospital's accounts receivable showing patients' names and amounts they owed were subject to public disclosure).
    327. See Open Records Decision Nos. 523 at 3-4 (1989) (concluding that credit reports and financial statements of individual veterans participating in Veterans Land Program are protected from disclosure as "background" financial information), 373 at 3 (1983) (concluding that sources of income, salary, mortgage payments, assets, and credit history of applicant for housing rehabilitation grant are protected by common-law privacy). But see Open Records Decision No. 620 at 4 (1993) (concluding that background financial information regarding corporation is not protected by privacy).
    328. Open Records Decision No. 373 at 4 (1983).
    329. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 678 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).
    330. 410 U.S. 113, 152 (1973).
    331. 424 U.S. 693, 712-13 (1976).
    332. Open Records Decision No. 600 at 4-5 (1992); see also Whalen v. Roe, 429 U.S. 589, 599-600 (1977).
    333. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 679 (Tex. 1976), cert. denied, 430 U.S. 931 (1977).
    334. See Open Records Decision No. 455 at 5 (1987) (citing Ramie v. City of Hedwig Village, 765 F.2d 490, 492 (5th Cir. 1985)).
    335. Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex. Civ. App.--Texarkana 1979, writ ref'd n.r.e.); Justice v. Belo Broadcasting Corp., 472 F. Supp. 145, 146-47 (N.D. Tex. 1979) ("action for invasion of privacy can be maintained only by a living individual whose privacy is invaded") (quoting Restatement of Torts 2d); Attorney General Opinion H-917 at 3-4 (1976); Open Records Decision No. 272 at 1 (1981); see United States v. Amalgamated Life Ins. Co., 534 F. Supp. 676, 679 (S.D.N.Y. 1982) (constitutional right to privacy terminates upon death and does not descend to heirs of deceased).
    336. Moore, 589 S.W.2d at 491; Justice, 472 F. Supp. at 146-47; Amalgamated Life Ins. Co., 534 F. Supp. at 679.
    337. See Attorney General Opinions DM-61 at 3 (1991), JM-851 at 2 (1988).
    338. Cain v. Hearst Corp., 878 S.W.2d 577, 579 (Tex. 1994).
    339. Open Records Decision No. 579 at 3-8 (1990).
    340. 353 U.S. 53 (1957).
    341. Id. at 59 (emphasis added) (citations omitted).
    342. See Open Records Decision Nos. 515 at 4-5 (1988), 191 at 1 (1978).
    343. Roviaro v. United States, 353 U.S. 53 (1957).
    344. See Open Records Decision No. 515 at 2 (1988).
    345. Id.
    346. Open Records Decision No. 208 at 1-2 (1978).
    347. Open Records Decision No. 549 at 5 (1990).
    348. Id. at 6.
    349. Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e., 536 S.W.2d 559 (Tex. 1976) (per curiam); see Open Records Decision No. 127 at 10 (1976).
    350. See Open Records Letter No. 97-2336 at 3-4 (1997) (citing Open Records Decision Nos. 393 (1983), 366 (1983), 333 (1982), 169 at 6-7 (1977), 123 (1976)).
    351. 652 S.W.2d 546, 550 (Tex. App.--Austin 1983, writ ref'd n.r.e.).
    352. Open Records Decision Nos. 444 at 5-6 (1986), 405 at 2-3 (1983).
    353. See Open Records Decision Nos. 600 at 9-11 (1992) (information about public employee's participation in group insurance program, retirement benefits beneficiaries, tax-exempt reimbursement accounts and direct deposit), 545 (1990) (information about public employee's participation in deferred compensation plan), 523 at 5 (1989) (federal income tax returns and W-2 and W-2P forms submitted by individual to governmental body are excepted from disclosure under common law privacy); see also Open Records Decision No. 600 at 8 (1992) (employee W-4 forms are excepted from disclosure by 26 U.S.C. � 6103(a)).
    354. See generally City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000); Lett v. Klein Indep. Sch. Dist., 917 S.W.2d 455, 456-57 (Tex. App.--Houston [14th Dist] 1996, writ denied).
    355. See Open Records Decision No. 615 (1993).
    356. Attorney General Opinion JM-229 at 2 (1984).
    357. Open Records Decision No. 455 at 8 (1987).
    358. See Open Records Decision No. 526 (1989).
    359. See, e.g., Open Records Letter Nos. 2002-6930 (2002), 2002-1827 (2002), 2001-2740 (2001), 2000-2621 (2000).
    360. See Open Records Decision No. 455 (1987).
    361. See Open Records Decision No. 643 (1996) (discussing scope of section 21.355 of Education Code).
    362. Educ. Code � 21.355.
    363. Gov't Code � 552.103(a).
    364. Thomas v. Cornyn, 71 S.W.3d 473, 487 (Tex. App.--Austin 2002, no pet.); Attorney General Opinion JM-1048 at 4 (1989).
    365. Open Records Decision No. 551 at 3 (1990).
    366. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).
    367. State governmental entities may withhold from disclosure under section 552.103 time and expense records under contract for legal services provided the state governmental entity if, in addition to meeting the section 552.103 burden, the chief legal officer or employee of the state governmental entity determines that withholding the information is necessary to protect the entity's strategy or position in pending or reasonably anticipated litigation. Gov't Code � 2254.104(d). A state governmental entity means a board, commission, department, office, or other agency in the executive branch of the state government created under the constitution or a statute of the state, including an institution of higher education as defined in section 61.003 of the Education Code. Id. � 2254.021(6).
    368. Open Records Decision No. 588 at 7 (1991) (construing statutory predecessor to APA).
    369. Id. at 6-7.
    370. Open Records Decision Nos. 551 at 5 (1990), 511 at 3 (1988).
    371. Act of May 25, 1999, 76th Leg., R.S., ch. 1319, � 6, sec. 552.103(a), 1999 Tex. Gen. Laws 4500, 4502.
    372. Open Records Decision No. 452 at 4 (1986).
    373. Attorney General Opinion JM-266 at 4 (1984); Open Records Decision Nos. 677 at 3 (2002), 518 at 5 (1989), 328 at 2 (1982).
    374. Open Records Decision Nos. 677 at 3 (2002), 518 at 5 (1989), 397 at 2 (1983), 361 at 2 (1983), 359 (1983).
    375. Open Records Decision No. 638 at 4 (1996).
    376. See Open Records Decision Nos. 518 at 5 (1989), 474 at 5 (1987).
    377. Open Records Decision No. 551 at 5 (1990).
    378. Id.
    379. Id.
    380. Id.
    381. Act of May 25, 1999, 76th Leg., R.S., ch. 1319, � 6, sec. 552.103(c), 1999 Tex. Gen. Laws 4500, 4502.
    382. Open Records Decision No. 677 at 2-3 (2002).
    383. Open Records Decision No. 597 (1991) (concluding that statutory predecessor to section 552.103 did not except basic information in offense report that was previously disclosed to defendant in criminal litigation); see Open Records Decision Nos. 551 at 4 (1990), 511 at 5 (1988), 493 at 2 (1988), 349 (1982), 320 (1982).
    384. Open Records Decision Nos. 551 at 4 (1990), 350 (1982).
    385. Open Records Decision No. 454 at 3 (1986); see Cornyn v. City of Garland, 994 S.W.2d 258 (Tex. App.--Austin 1999, no pet.); Open Records Decision No. 579 at 9-10 (1990) (exchange of information in informal discovery is not voluntary release of information under section 552.021).
    386. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.).
    387. Act of May 25, 1999, 76th Leg., R.S., ch. 1319, � 6, sec. 552.103(a), 1999 Tex. Gen. Laws 4500, 4502.
    388. See Open Records Decision No. 677 at 2 (2002).
    389. Id.
    390. Id. at 4.
    391. See id. at 2; Open Records Decision No. 647 at 3 (1996).
    392. Open Records Decision No. 677 at 2 (2002).
    393. Id.; Gov't Code � 552.103; Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).
    394. Open Records Decision No. 677 at 5-8 (2002).
    395. Open Records Decision No. 518 at 5 (1989).
    396. See Act of May 4, 1993, 73d Leg., R.S., ch. 268, � 47, 1993 Tex. Gen. Laws 583, 986.
    397. See Open Records Decision No. 592 at 8 (1991).
    398. Id. at 8-9.
    399. Id. at 8.
    400. Open Records Decision Nos. 593 at 2 (1991), 541 at 4 (1990), 463 (1987).
    401. Open Records Decision Nos. 541 at 5 (1990), 514 at 2 (1988), 319 at 3 (1982).
    402. Open Records Decision No. 170 (1977); see also Open Records Decision No. 541 at 5 (1990) (recognizing limited situation in which statutory predecessor to section 552.104 continued to protect information submitted by successful bidder when disclosure would allow competitors to accurately estimate and undercut future bids).
    403. Open Records Decision No. 331 (1982).
    404. See, e.g., Open Records Decision Nos. 319 (1982), 309 (1982).
    405. Compare Attorney General Opinion MW-591 (1982) (identity of probable bidders is protected from public disclosure because disclosure could interfere with governmental body's ability to obtain best bids possible) with Open Records Decision No. 453 (1986) (identity of individuals who receive bid packets are not protected when governmental body fails to show substantial likelihood that these individuals would bid).
    406. See Open Records Decision Nos. 463 (1987), 231 (1979), 153 (1977), 99 (1975).
    407. See, e.g., Open Records Letter Nos. 97-2516 (1997) (City of San Antonio records of costs various performers pay for use of Alamodome), 96-2186 (1996) (City of Alvin information regarding proposal to provide another city with solid waste disposal services).
    408. Gov't Code � 552.104(b).
    409. Open Records Decision No. 357 at 3 (1982).
    410. Gov't Code � 552.105; see Open Records Decision No. 222 at 1-2 (1979).
    411. See Open Records Decision No. 564 (1990) (construing statutory predecessor to section 552.105).
    412. Id.
    413. Id.
    414. Open Records Decision No. 348 (1982).
    415. See Open Records Decision No. 429 at 5-6 (1985).
    416. Open Records Decision No. 460 at 2 (1987).
    417. Id.; Open Records Decision Nos. 344 at 3-4 (1982), 197 at 3 (1978), 140 at 4 (1976).
    418. Open Records Decision No. 460 at 2 (1987).
    419. Open Records Decision No. 429 at 5 (1985).
    420. See Open Records Decision Nos. 460 at 2-3 (1987), 367 (1983), 248 (1980).
    421. Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.--San Antonio 1982, writ ref'd n.r.e.).
    422. Open Records Decision No. 482 at 9 (1987). But see Open Records Decision No. 615 at 5 (1993) (holding that agency's policymaking functions protected by section 552.111 do not encompass routine internal administrative and personnel matters).
    423. See Open Records Decision Nos. 460 at 3 (1987), 429 at 5 (1985).
    424. The Texas Rules of Civil Evidence and Texas Rules of Criminal Evidence were merged, effective March 1, 1998, and are now known as the "Texas Rules of Evidence." Tex. R. Evid. 101.
    425. Open Records Decision Nos. 676 at 1-3 (2002), 574 at 2 (1990). But see Hart v. Gossum, 995 S.W.2d 958, 963 n.2 (Tex. App.--Fort Worth 1999, no pet.).
    426. Open Records Decision Nos. 676 at 1-3 (2002), 575 at 2 (1990).
    427. Open Records Decision No. 676 at 4 (2002).
    428. Id. at 7.
    429. Id.; Tex. R. Evid. 503(b)(1).
    430. Tex. R. Evid. 503(b)(1)(A), (B), (C), (D), (E); Open Records Decision No. 676 at 8-10 (2002).
    431. Tex. R. Evid. 503(a)(5); Open Records Decision No. 676 at 10 (2002); see Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.--Waco 1997, no pet.) (whether a communication was confidential depends on the intent of the parties involved at the time the information was communicated).
    432. Open Records Decision No. 676 at 10-11 (2002).
    433. 25 S.W.3d 328 (Tex. App.--Austin 2000, pet. denied).
    434. Id. at 330.
    435. Id. at 330-31.
    436. Id. at 332-35.
    437. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein); In re Valero Energy Corp., 973 S.W.2d 453, 457 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (privilege attaches to complete communication, including factual information).
    438. See Nat'l Tank v. Brotherton, 851 S.W.2d 193, 200 (Tex. 1993); Owens-Corning Fiberglass Corp. v. Caldwell, 818 S.W.2d 749, 750 (Tex. 1991).
    439. See In re City of Georgetown, 53 S.W.3d 328, 337 (Tex. 2001); Open Records Decision No. 676 at 5-6 (2002).
    440. Open Records Decision Nos. 663 at 7-8 (1999), 499 at 5 (1988), 462 at 7 (1987).
    441. Tex. R. Evid. 511(1); see also Jordan v. Court of Appeals for Fourth Supreme Judicial Dist., 701 S.W.2d 644, 649 (Tex. 1985) (if the matter for which a privilege is sought has been disclosed to a third party, thus raising the question of waiver of the privilege, the party asserting the privilege has the burden of proving that no waiver has occurred).
    442. See Open Records Decision No. 415 at 2 (1984).
    443. See Gov't Code � 552.022.
    444. Id. � 552.022(a)(18).
    445. Civ. Prac. & Rem. Code � 154.073 (concerning final settlement agreements of governmental body reached during a dispute resolution procedure under chapter 154 of Civil Practice and Remedies Code); Open Records Decision No. 658 (1998) (same).
    446. Open Records Decision No. 143 at 1 (1976).
    447. Open Records Decision No. 309 at 5 (1982).
    448. See Open Records Decision Nos. 493 at 2 (1988), 287 at 2 (1981).
    449. Open Records Decision No. 199 (1978).
    450. See id. But see Attorney General Opinion MW-575 at 1-2 (1982) (indicating that former section 552.108 may apply to information gathered by administrative agency when its release would unduly interfere with law enforcement); Open Records Decision No. 493 at 2 (1988).
    451. Open Records Letter No. 99-1907 (1999) (Medicaid Program Integrity Division of Health and Human Services Commission investigates both civil and criminal violations of medicaid fraud laws and refers criminal violations to attorney general for criminal enforcement).
    452. Attorney General Opinion MW-381 at 3 (1981); Open Records Decision No. 413 (1984).
    453. Open Records Decision No. 320 (1982).
    454. Open Records Decision No. 211 at 3 (1978).
    455. Open Records Decision No. 127 (1976).
    456. Open Records Decision No. 129 (1976).
    457. See Gov't Code �� 466.019 (Lottery Commission is authorized to enforce violations of lottery laws), .020 (Lottery Commission is authorized to maintain department of security staffed by commissioned peace officers or investigators).
    458. A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 677-78 (Tex. 1995) (comptroller's office is charged with law enforcement and prosecutory powers).
    459. Attorney General Opinion MW-575 (1982).
    460. Open Records Decision No. 199 (1978).
    461. Open Records Decision No. 85 (1975).
    462. Open Records Decision No. 493 (1988).
    463. Open Records Decision No. 80 (1975).
    464. Open Records Decision No. 272 at 1-2 (1981).
    465. See, e.g., Open Records Letter Nos. 2003-1293 (2003), 2002-7220 (2002).
    466. See Attorney General Opinion MW-575 at 1-2 (1982) (construing statutory predecessor); Open Records Decision No. 493 at 2 (1988) (same); Open Records Letter No. 99-1907 (1999) (section 552.108 applicable to information Health and Human Services Commission's Medicaid Program Integrity Division ("MPI") intends to refer to Attorney General's Medicaid Fraud Control Unit for criminal prosecution and not to cases MPI does not so refer).
    467. Open Records Letter No. 98-0709 (1998).
    468. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177, 184-85 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e., 536 S.W.2d 559 (Tex. 1976) (per curiam) (court delineates law enforcement interests that are present in active cases).
    469. See Open Records Decision No. 628 at 6-8 (1994).
    470. 924 S.W.2d 920, 923-24 (Tex. 1996) (holding that statutory predecessor to section 552.108 made no distinction between open and closed case files and did not require governmental body to establish that release of requested criminal files would cause undue interference with law enforcement).
    471. Open Records Decision Nos. 616 at 1 (1993), 434 at 2-3 (1986); see Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977).
    472. See Open Records Decision No. 297 at 2 (1981).
    473. Open Records Decision No. 409 at 2 (1984).
    474. Open Records Decision No. 611 at 1-2 (1992).
    475. Open Records Decision No. 616 (1993).
    476. See Open Records Decision No. 508 at 2 (1988).
    477. Open Records Decision No. 341 (1982).
    478. See Open Records Decision Nos. 216 at 4 (1978), 133 at 3 (1976).
    479. 904 S.W.2d 668 (Tex. 1995).
    480. 5 U.S.C. � 552.
    481. A & T Consultants, Inc., 904 S.W.2d at 677-78 (such information also excepted from disclosure by former section 552.116 of Government Code).
    482. Id. at 678.
    483. Id. at 679 (such information also excepted under former section 552.116 of Government Code).
    484. Gov't Code � 552.108(a)(3).
    485. Id. � 411.048(b).
    486. Open Records Letter No. 2003-3988 (2003).
    487. Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177, 184-85 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e., 536 S.W.2d 559 (Tex. 1976) (per curiam).
    488. Open Records Decision No. 127 at 4-5 (1976).
    489. See Open Records Decision Nos. 440 (1986), 393 (1983), 339 (1982).
    490. See Open Records Letter No. 97-2332 (1997).
    491. Open Records Decision No. 508 at 2 (1988) (construing statutory predecessor).
    492. Open Records Decision No. 394 at 3 (1983); see City of Lubbock v. Cornyn, 993 S.W.2d 461 (Tex. App.--Austin 1999, no pet.).
    493. See Open Records Decision Nos. 371 (1983), 127 at 2 (1976).
    494. Open Records Decision No. 364 (1983).
    495. See, e.g., Code Crim. Proc. art. 18.01(b) (making public executed search warrant affidavit).
    496. Transp. Code � 550.065.
    497. See Gov't Code � 552.022(a)(17); Curry v. Walker, 873 S.W.2d 379 (Tex. 1994).
    498. See Tex. State Employees Union v. Tex. Dep't of Mental Health & Mental Retardation, 746 S.W.2d 203, 206 (Tex. 1987); Open Records Decision No. 562 at 8-9 n.2 (1990).
    499. City of Fort Worth v. Cornyn, 86 S.W.3d 320, 326-27 (Tex. App.--Austin 2002, no pet.); Open Records Decision Nos. 562 at 10 (1990), 329 at 1 (1982).
    500. Open Records Decision Nos. 350 at 3 (1982), 342 at 2 (1982), 329 at 2 (1982).
    501. Open Records Decision Nos. 329 at 2 (1982), 313 at 2-3 (1982), 297 at 2 (1981), 252 at 4 (1980).
    502. Morales v. Ellen, 840 S.W.2d 519, 525-26 (Tex. App.--El Paso 1992, writ denied) (construing statutory predecessor).
    503. See City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556 (Tex. App.--San Antonio 2000, pet. denied); City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946, 952 (Tex. App.--Austin 1993, writ denied); see also Gov't Code �� 552.117(a)(2), (3), .1175 (excepting from disclosure home addresses and home telephone numbers of peace officers and additional information of current and former employees of Texas Department of Criminal Justice and their family members). (For a discussion of section 552.117, refer to page 123 of this handbook.)
    504. Local Gov't Code � 143.089(a), (g).
    505. For the purpose of section 143.089 of the Local Government Code, the term "disciplinary action" includes removal, suspension, demotion and uncompensated duty. Local Gov't Code �� 143.051-.055. "Disciplinary action" does not include a written reprimand. See Attorney General Opinion JC-0257 (2000).
    506. Abbott v. City of Corpus Christi, 109 S.W.3d 113, 122 (Tex. App.-- Austin 2003, no pet.).
    507. See Local Gov't Code � 143.089(f); Open Records Decision No. 562 at 6 (1990).
    508. City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946, 949 (Tex. App.--Austin 1993, writ denied).
    509. Open Records Decision No. 650 (1996).
    510. Local Gov't Code � 143.089(g).
    511. See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989).
    512. See id.; cf. Gov't Code � 411.083.
    513. See Open Records Decision No. 655 (1997).
    514. See Open Records Decision No. 565 at 10-12 (1990).
    515. Gov't Code � 411.081(b).
    516. Gov't Code � 411.082.
    517. Gov't Code �� 411.083(b)(3), .135.
    518. Fam. Code � 58.007.
    519. Section 58.007 applies only to the records of a child who is ten years of age or older and under 17 years of age or 17 years of age or older and under 18 years of age who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17 years of age. Fam. Code � 51.02(1).
    520. Fam. Code � 58.007.
    521. Code Crim. Proc. art. 62.08; see In re M.A.H., 20 S.W.3d 860, 862 (Tex. App.--Fort Worth 2000, no pet.); Open Records Decision No. 645 at 3 (1996) (construing statutory predecessor).
    522. Code Crim. Proc. art. 62.03(g); In re M.A.H., 20 S.W.3d at 862.
    523. Code Crim. Proc. art. 62.03(g).
    524. Open Records Decision No. 649 at 2-3 (1996).
    525. Id. at 4.
    526. Id.
    527. Act of June 2, 2003, 78th Leg., R.S., H.B. 9, � 3 (codified at Gov't Code �� 418.176-.182).
    528. 49 U.S.C. �� 114(a), (b)(1), 40119(b)(1); 49 C.F.R. pt. 1520.
    529. Open Records Letter Nos. 2003-4166 (2003), 2002-2710 (2002), 2002-2623 (2002).
    530. See, e.g., Open Records Decision Nos. 506 at 3 (1988), 241 (1980), 212 (1978).
    531. Open Records Decision No. 473 at 3 (1987).
    532. See Open Records Decision No. 332 at 2 (1982).
    533. See Gov't Code �� 306.003, .004; Open Records Decision No. 648 (1996).
    534. See Open Records Decision No. 212 at 4 (1978).
    535. Gov't Code � 552.305.
    536. Id.
    537. Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex.), cert. denied, 358 U.S. 898 (1958).
    538. Open Records Decision No. 552 at 2 (1990); see Envoy Med. Sys. v. State, 108 S.W.3d 333, 337 (Tex. App.--Austin 2003, no pet.).
    539. Restatement of Torts � 757 cmt. b (1939); see Ctr. for Econ. Justice v. Am. Ins. Ass'n, 39 S.W.3d 337, 344-45 (Tex. App.--Austin 2001, no pet.); Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766, 783 (Tex. App.--Austin 1999, pet. denied).
    540. See In re Bass, 113 S.W.3d 735, 740 (Tex. 2003).
    541. See id.
    542. Open Records Decision Nos. 659 at 2 (2000), 552 at 5 (1990).
    543. The former section 552.110 excepted "commercial and financial information . . . privileged or confidential by statute or judicial decision." It did not set out the standard for excepting commercial or financial information. In 1996, this office announced that it would follow the test for applying section 552(b)(4) of the federal Freedom of Information Act as set forth in Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). See Open Records Decision No. 639 at 2-3 (1996). However, the Third Court of Appeals held that National Parks was not a judicial decision within the meaning of the former section 552.110. Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766 (Tex. App.--Austin 1999, pet. denied). Consequently, after the Birnbaum decision, this office no longer used the National Parks standard for excepting commercial or financial information under former section 552.110.
    544. See Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
    545. See Open Records Decision No. 661 (1999).
    546. Open Records Decision No. 462 (1987) (construing statutory predecessor).
    547. See Open Records Decision No. 561 at 9 (1990) (correspondence from Federal Bureau of Investigation officer to city was not protected by statutory predecessor to section 552.111, where no privity of interest or common deliberative process existed between federal agency and city).
    548. Open Records Decision No. 474 at 2-3 (1987) (construing statutory predecessor).
    549. Open Records Decision Nos. 677 at 4 (2002), 615 at 2-3 (1993).
    550. Open Records Decision Nos. 647 at 5-6 (1996), 615 at 5 (1993); see City of Garland v. Dallas Morning News, 22 S.W.3d 351, 360 (Tex. 2000).
    551. City of Garland, 22 S.W.3d at 360; Lett v. Klein Indep. Sch. Dist., 917 S.W.2d 455, 456 (Tex. App.--Houston [14th Dist.] 1996, writ denied); Tex. Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 412-13 (Tex. App.--Austin 1992, no writ); Open Records Decision No. 647 at 5-6 (1996).
    552. City of Garland, 22 S.W.3d at 361, 364; Arlington Indep. Sch. Dist. v. Tex. Attorney Gen., 37 S.W.3d 152, 158 (Tex. App.--Austin 2001, no pet.); Open Records Decision No. 615 at 5 (1993).
    553. Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.--San Antonio 1982, writ ref'd n.r.e.); see also City of Garland, 22 S.W.3d at 361; Lett, 917 S.W.2d at 457; Gilbreath, 842 S.W.2d at 412.
    554. Open Records Decision No. 615 at 5 (1993); see City of Garland, 22 S.W.3d at 364; Lett, 917 S.W.2d at 457.
    555. City of Garland, 22 S.W.3d at 364; Lett, 917 S.W.2d at 457.
    556. Open Records Decision No. 631 at 3 (1995); City of Garland, 969 S.W.2d at 557.
    557. Open Records Decision No. 631 at 3 (1995).
    558. See Open Records Decision No. 615 at 4-5 (1993); City of Garland v. Dallas Morning News, 969 S.W.2d 548 (Tex. App.--Dallas 1998), aff'd, 22 S.W.3d 551 (Tex. 2000).
    559. Open Records Decision No. 677 at 4-8 (2002).
    560. Tex. R. Civ. P. 192.5(a).
    561. See Open Records Decision No. 677 at 6 (2002).
    562. Id.; Tex. R. Civ. P. 192.5(a).
    563. Nat'l Tank Co. v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993); In re Monsanto, 998 S.W.2d 917, 923-24 (Tex. App.--Waco 1999, no pet.).
    564. Nat'l Tank Co., 851 S.W.2d at 204; see Open Records Decision No. 677 at 7 (2002).
    565. Tex. R. Civ. P. 192.5(a)(1); Open Records Decision No. 677 at 7 (2002).
    566. Tex. R. Civ. P. 192.5(a)(2); Open Records Decision No. 677 at 7-8 (2002).
    567. Open Records Decision No. 677 at 8 (2002).
    568. Act of June 2, 2003, 78th R.S., S.B. 1000, � 2 (codified at Gov't Code � 552.112(c)).
    569. See generally Open Records Decision Nos. 261 (1980), 29 (1974).
    570. Open Records Decision No. 483 at 9 (1987).
    571. Open Records Decision No. 158 at 4-5 (1977).
    572. Id. at 5; see also Open Records Decision No. 392 at 3 (1983).
    573. 994 S.W.2d 766 (Tex. App.--Austin 1999, pet. denied).
    574. Id. at 776.
    575. Act of May 25, 1995, 74th Leg., R.S., ch. 1035, � 8, sec. 552.113, 1995 Tex. Gen. Laws 5127, 5131.
    576. Open Records Decision No. 627 at 3-4 (1994).
    577. Id. at 4 n.4.
    578. Open Records Decision No. 504 at 4 (1988).
    579. See Open Records Decision Nos. 592 at 4-8 (1991), 552 at 2-5 (1990).
    580. 5 U.S.C. � 552(b)(9).
    581. Open Records Decision No. 627 at 2-3 (1994).
    582. Id. at 3.
    583. Id.
    584. Open Records Decision No. 669 at 6 (2000).
    585. Id.
    586. Id.
    587. 20 U.S.C. � 1232g.
    588. See Open Records Decision No. 72 (1975) (concluding that compliance with federal law was required before enactment of statutory predecessor to section 552.026).
    589. 20 U.S.C. � 1232g(b)(1).
    590. Id. � 1232g(a)(1).
    591. Id. � 1232g(d).
    592. Id. � 1232g(a)(4)(A).
    593. See id. � 1232g(a)(5)(B).
    594. 34 C.F.R. � 99.3.
    595. Open Records Decision No. 96 (1975); see also Open Records Decision Nos. 244 (1980) (student rosters public), 242 (1980) (student parking permit information public), 193 (1978) (report of accident insurance claims paid to identifiable students not public).
    596. See Open Records Decision Nos. 342 at 2-3 (1982), 205 at 2 (1978).
    597. 20 U.S.C. � 1232g(a)(4)(B)(ii).
    598. Open Records Decision No. 612 at 2 (1992) (concluding that campus police department records were not excepted by statutory predecessor to section 552.101, incorporating FERPA, or statutory predecessor to section 552.114).
    599. See Open Records Decision No. 390 at 3 (1983) (City of Fort Worth is not "educational agency" within FERPA).
    600. 20 U.S.C. � 1232g(a)(3).
    601. Id. � 1232g(b)(1)(E), (b)(4)(B); 34 C.F.R. �� 99.31, .33, .35.
    602. Open Records Decision No. 431 (1985).
    603. Letter from LeRoy S. Rooker, Director, Family Policy Compliance Office, United States Dep't of Educ., to Keith B. Kyle (July 1999) (on file with the Open Records Division, Office of the Attorney General).
    604. Open Records Decision No. 634 also stated that an educational agency or institution that seeks a ruling under the Public Information Act should, before submitting "education records" to the attorney general, either obtain parental consent to the disclosure of personally identifiable nondirectory information in the records or edit the records to make sure that they contain no personally identifiable nondirectory information. However, subsequent correspondence from the United States Department of Education has advised that educational agencies and institutions may submit personally identifiable information subject to FERPA to the attorney general for purposes of obtaining rulings as to whether information contained therein must be withheld under FERPA or state law. See Letter from LeRoy S. Rooker, Director, Family Policy Compliance Office, United States Department of Education to David Anderson, Chief Counsel, Texas Education Agency (April 29, 1998) (on file with the Open Records Division, Office of the Attorney General). Thus, should Texas educational institutions or agencies seek attorney general decisions under the Public Information Act regarding information subject to FERPA, information submitted in connection therewith under section 552.301(e)(1)(D) of the Act should be submitted in unredacted form, and parental consent need not be obtained.
    605. Open Records Decision No. 431 at 3 (1985).
    606. Open Records Decision No. 634 (1995).
    607. Open Records Decision No. 524 at 3 (1989).
    608. See Open Records Decision No. 431 (1985).
    609. Section 552.115 was amended by Act of May 30, 2003, 78th Leg., R.S., S.B. 861, � 1 (codified at Gov't Code � 552.115).
    610. Gov't Code � 552.115(a).
    611. See generally Open Records Decision No. 596 (1991) (regarding availability of adoption records).
    612. See Health & Safety Code � 191.022; see also Attorney General Opinion MW-163 (1980).
    613. See Attorney General Opinion DM-146 at 2 (1992).
    614. Id. at 5.
    615. Gov't Code � 552.115(a)(3), (4).
    616. Id. � 552.115(b).
    617. Absent specific authority, a governmental body may not generally promulgate a rule that makes information confidential so as to except the information from required public disclosure pursuant to section 552.101 of the Act. See Gov't Code � 552.101; see also Open Records Decision Nos. 484 (1987), 392 (1983), 216 (1978). In the instant case, however, this office has found that the Texas Department of Health has been granted specific authority by the legislature to promulgate administrative rules that dictate the public availability of information contained in and derived from vital records. See Open Records Decision No. 596 (1991).
    618. 25 Tex. Admin. Code � 181.23(b)(2), (3).
    619. Gov't Code � 552.115(a)(5).
    620. Section 552.116 was amended by Act of May 30, 2003, 78th Leg., R.S., S.B. 1581, � 1 (codified at Gov't Code � 552.116(a)).
    621. Gov't Code � 552.116(a).
    622. Id. � 552.116(b).
    623. Section 552.117 was amended by Act of May 30, 2003, 78th Leg., R.S., S.B. 1388, � 1 (codified at Gov't Code � 552.117).
    624. See Open Records Decision No. 516 at 3 (1989).
    625. See Open Records Decision Nos. 169 at 6 (1977), 123 at 2 (1976); see also Calvert v. Employees Retirement Sys., 648 S.W.2d 418, 420-21 (Tex. App.--Austin 1983, writ ref'd n.r.e.) (judicial retirees' names and addresses are not protected by right of privacy).
    626. See, e.g., Open Records Letter Nos. 2002-1488 (2002), 2001-0050 (2001).
    627. Open Records Decision No. 455 at 2 (1987).
    628. See Open Records Decision No. 532 at 6 (1989).
    629. Section 552.1175 was amended by Act of May 30, 2003, 78th Leg., R.S., S.B. 1388, � 2 (codified at Gov't Code � 552.1175).
    630. See, e.g., Open Records Letter Nos. 99-3302 (1999), 96-2452 (1996).
    631. See, e.g., Open Records Letter No. 2002-6335 (2002).
    632. Act of May 30, 2003, 78th Leg., R.S., S.B. 1388, � 2 (codified at Gov't Code � 552.1175(e)).
    633. Open Records Decision No. 678 at 4 (2003).
    634. Id. at 4-5.
    635. Health & Safety Code � 481.075(e).
    636. Id. � 481.075(i)(3).
    637. Open Records Decision No. 502 at 4-6 (1988).
    638. Id. at 6.
    639. Open Records Decision No. 536 at 2 (1989).
    640. Id.
    641. Id.
    642. Educ. Code � 51.910(b).
    643. Id. � 51.910(a).
    644. Attorney General Opinion JM-37 at 2 (1983).
    645. Open Records Decision No. 626 at 6 (1994).
    646. Id. at 6-8.
    647. Open Records Decision No. 540 (1990) (construing statutory predecessor to section 552.123).
    648. See Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 557 (Tex. App.--Austin 1983, writ ref'd n.r.e.); Open Records Decision No. 439 at 2 (1986).
    649. See Open Records Decision No. 585 (1991) (availability of names of applicants for position of city manager).
    650. See Open Records Decision No. 540 at 5 (1990).
    651. Added by Act of June 2, 2003, 78th Leg., R.S., S.B. 1652, � 4.07 (codified at Gov't Code � 552.1235).
    652. See Senate Comm. on State Affairs, Bill Analysis, S.B. 360, 73d Leg., R.S. (1993); Open Records Decision No. 100 (1975) (concluding that identity of library user in connection with library materials he or she has reviewed was protected from public disclosure under statutory predecessor to section 552.101).
    653. Open Records Letter No. 99-1566 (1999).
    654. Open Records Letter No. 2000-3201 (2000).
    655. Tex. Rev. Civ. Stat. art. 4447cc, � 5.
    656. Id. � 4.
    657. Id. � 2.
    658. Open Records Letter No. 99-2830 (1999).
    659. Id.
    660. Open Records Letter Nos. 99-0565 (1999), 98-0782 (1998).
    661. Open Records Letter Nos. 99-0979 (1999), 99-0922 (1999).
    662. Open Records Letter No. 99-1511 (1999).
    663. See, e.g., Open Records Letter Nos. 2002-7018 (2002), 2001-3659 (2001).
    664. See, e.g., Open Records Letter Nos. 2000-4847 (2000), 2000-1083 (2000).
    665. Section 552.132 was amended by Act of May 31, 2003, 78th Leg., R.S., S.B. 1027, � 1 (codified at Gov't Code � 552.132).
    666. Open Records Letter Nos. 2001-0821 (2001), 2001-0479 (2001).
    667. Open Records Letter No. 2001-0821 (2001).
    668. Section 552.1325 was added by Act of June 2, 2003, 78th Leg., R.S., S.B. 1015, � 1 (codified at Gov't Code � 552.1325).
    669. Open Records Decision No. 666 at 4 (2000).
    670. Gov't Code � 508.313(c).
    671. Open Records Decision No. 667 at 4 (2000).
    672. See Open Records Letter Nos. 2001-3118 (2001), 2001-1376 (2001).
    673. Open Records Letter Nos. 2001-3378 (2001), 2001-2537 (2001).
    674. Act of May 21, 2003, 78th Leg., R.S., H.B. 3506, � 2 (codified at Gov't Code � 552.137).
    675. Act of May 21, 2003, 78th Leg., R.S., H.B. 3507, � 9.013.
    676. See, e.g., Open Records Letter No. 2003-3627 (2003).
    677. Act of May 21, 2003, 78th Leg., R.S., H.B. 3506, � 2 (codified at Gov't Code 552.138).
    678. Act of May 21, 2003, 78th Leg., R.S., H.B. 3506, � 2 (codified at Gov't Code 552.139).
    679. Act of May 24, 2003, 78th Leg., R.S., H.B. 545, � 1 (codified at Gov't Code � 552.140).
    680. Act of May 21, 2003, 78th Leg., R.S., S.B. 174, � 1 (codified at Gov't Code � 552.141).
    681. Act of May 21, 2003, 78th Leg., R.S., S.B. 174, � 2 (codified at Gov't Code � 552.141).
    682. Act of May 24, 2003, 78th Leg., R.S., S.B. 1147, � 1 (codified at Gov't Code � 552.141).
    683. Act of May 26, 2003, 78th Leg., R.S., H.B. 149, � 2 (codified at Gov't Code � 552.141).
    684. Act of June 1, 2003, 78th Leg., R.S., S.B. 1477, � 5 (codified at Gov't Code � 552.142).
    685. Id. (codified at Gov't Code � 552.1425).
    Revised: March 15 2004