The Basics of Privacy & Personnel Records Joseph Behnke Cristian Rosas-Grillet, Nicholas Ybarra Assistant Attorneys General Open Records Division Views expressed are those of the presenter, do not constitute legal advice and are not official opinions of the Office of the Texas Attorney General

Exceptions that Most Commonly Apply to Ordinary Personnel Files Section  Information Protected Any and all information that is made confidential by law outside of the Public Information Act, including Texas and federal statutes, common-law, and constitutional privacy  What You Need To Tell Us When asserting Section , you should cite the specific statute or privacy principle AND explain why you believe it applies to the requested records.

Section and Statutes (Slide 1 of 7) Section 1324a of Title 8 of the United States Code  Information Protected Employment Eligibility Verification “Form I-9” and appended ID forms.  Note: May withhold without seeking attorney general decision pursuant to Open Records Decision No. 684 (2009).

Section 6103(a) of Title 26 of the United States Code  Information Protected “Tax return information,” including a W-2 or W-4.  Note: May withhold without seeking attorney general decision pursuant to Open Records Decision No. 684 (2009). Section and Statutes (Slide 2 of 7)

Section and Statutes (Slide 3 of 7) Section of the Government Code  Information Protected Fingerprints and other “biometric identifiers”  Note: May withhold without seeking attorney general decision pursuant to Open Records Decision No. 684 (2009). Section of the Occupations Code  Information Protected Information acquired from a polygraph examination

Section and Statutes (Slide 4 of 7) Section of the Medical Practice Act (“MPA”), subtitle B of Title 3 of the Occupations Code  Information Protected Communications between a physician and a patient, including information relative to or in connection with any professional service provided by the physician; and records of the identity, diagnosis, evaluation, or treatment of a patient created or maintained by a physician

Section and Statutes (Slide 5 of 7) Section of the Health & Safety Code  Information Protected Communications between a patient and mental health professional and records of the identity, diagnosis, or treatment of a mental health patient created or maintained by a mental health professional

Section and Statutes (Slide 6 of 7) Americans with Disabilities Act of 1990 (“ADA”)  Information Protected Information about the medical conditions and medical histories of applicants or employees; information obtained in the course of a “fitness for duty examination” conducted to determine whether an employee is still able to perform the essential functions of his or her job; specific information about an individual’s disability and related functional limitations, as well as general statements that an individual has a disability or that an ADA reasonable accommodation has been provided for a particular individual

Section and Statutes (Slide 7 of 7) Section (g) of the Local Government Code  Information Protected Personnel files of police officers and fire fighters of municipalities that have elected to become civil service cities under Chapter 143 of the Local Government Code The civil service file is subject to release, while the internal departmental file is confidential.

Section and Common-Law Privacy (Slide 1 of 4)  Information Protected Information that (1)contains highly intimate or embarrassing facts, which if publicized would be highly objectionable to a reasonable person, AND (2) is not of legitimate concern to the public.

Section and Common-Law Privacy (Slide 2 of 4)  This includes Public citizens’ dates of birth, pursuant to Third Court of Appeals in Paxton v. City of Dallas. Personal financial information.  Ex. mortgage payments, assets, bills, credit history, beneficiaries of employee’s retirement benefits, optional insurance coverage. Medical information or information indicating disabilities or specific illnesses.  Ex. specific prescription drugs, operations, physical handicaps, psychiatric treatment of mental disorders, pregnancy, and suicide attempts.

 Information relating to a sexual harassment investigation (1) If you have an adequate summary of the investigation, then you must release the summary and the statements of the person under investigation, with the victim’s and witnesses’ identifying information redacted. The remaining information must be withheld. (2) If you do not have an adequate summary of the investigation, you must release the information you have regarding the investigation, with the victim’s and witnesses’ identifying information redacted. Section and Common-Law Privacy (Slide 3 of 4)

 BUT… Common-law privacy lapses at death. An individual has a right of access under section of the Government Code to his or her own information that is otherwise protected by common-law privacy. Section and Common-Law Privacy (Slide 4 of 4)

Section (a)  Information Protected Tex. Comptroller of Pub. Accounts v. Attorney Gen. of Tex., the Texas Supreme Court held Section (a) protects the birth date of an employee of a governmental body in a record maintained by his/her employer in an employment context.

Section (a)(1)  Information Protected Your current or former employee’s or official’s 1.current and former home addresses, 2.current and former home telephone numbers, 3.emergency contact information, 4.Social Security number, and 5.information that reveals whether the employee has family members if he/she elected to withhold such information from disclosure prior to the request being made

Section (c)  You may redact information subject to Section without requesting a decision if the current or former employee or official at issue timely elected to withhold such information.  Section (c-2) states you must provide the requestor with a form containing (1) a description of the information withheld, (2) a citation to Section , and (3) instructions for how a requestor can request an opinion from our office.  Under Section (c-1), the requestor is entitled to seek a decision from our office as to whether the information you redacted was properly withheld.

Section (a)(2)  Information Protected 1.current and former home addresses, 2.current and former home telephone numbers, 3.emergency contact information, 4.Social Security number, and 5.information that reveals whether the employee has family members of a peace officer employed by your governmental body

Section  Information Protected 1.current and former home addresses, 2.current and former home telephone numbers, 3.emergency contact information, 4.date of birth 5.Social Security number, and 6.information that reveals whether the employee has family members of several categories of people, including licensed peace officers, county jailers, and commissioned security officers  Applies to information regarding these individuals who (1) work for you but the information is held in a non- employment capacity, OR (2) never worked for you, but are employed by another governmental body

Section (f)  You may redact information protected by Section (b) without requesting a decision from our office.  Section (h) states you must provide the requestor with a form containing (1) a description of the information withheld, (2) a citation to Section , and (3) instructions for how a requestor can request an opinion from our office.  Under Section (g), the requestor is entitled to seek a decision from our office as to whether the information you redacted was properly withheld.

Section compared with section Must tell us… (a)(1) (a)(2) To whom does the information belong and how is it held? Information pertaining to current & former employees and officials of your governmental body; held by you in an employment capacity Information pertaining to peace officers employed by your governmental body; held by you in an employment capacity Information pertaining to peace officers & certain other law enforcement personnel either (1) employed by you, but the information is held in a non- employment capacity, or (2) employed by another governmental body Has the individual elected confidentiality? Employee elected confidentiality before you received the request Protection is automatic Individual makes an election with your governmental body (can be after you received the request)

Section  Information Protected A test item developed by an educational institution that is funded wholly or in part by state revenue, a licensing agency, or a governmental body Our office has interpreted this section to protect test items such as interview questions and in-box exercises, if they serve as a standard means to evaluate knowledge or ability in a particular area.

Section  Information Protected Information relating to motor vehicle records and personal identification documents issued by an agency of the State of Texas or another state or country This information includes a driver’s license number, class, and expiration date; an ID card number and expiration date; a license plate number, class, and expiration date; a vehicle identification number (VIN), as well as a registration sticker number, class, and expiration date

Section (c)  You may redact information subject to section without requesting a decision from our office.  Section (e) states you must provide the requestor with a form containing (1) a description of the information withheld, (2) a citation to Section , and (3) instructions for how a requestor can request an opinion from our office.  Under Section (d), the requestor is entitled to seek a decision from our office as to whether the information you redacted was properly withheld.

Section  Information Protected Credit card, debit card, charge card, or access device numbers. For example, bank account numbers, personal identification numbers (PINs), and insurance policy numbers are all protected by this exception.

Section (c)  You may redact information subject to Section without requesting a decision from our office.  Section (e) states you must provide the requestor with a form containing (1) a description of the information withheld, (2) a citation to Section , and (3) instructions for how a requestor can request an opinion from our office.  Under Section (d), the requestor is entitled to seek a decision from our office as to whether the information you redacted was properly withheld.

Section  Information Protected Most addresses of members of the public, unless the member of the public has consented to its release.  Note: May withhold without seeking attorney general decision pursuant to Open Records Decision No. 684 (2009).

Section  Information Protected A military veteran’s Department of Defense form DD- 214 or other military discharge record IF it first comes into your possession on or after September 1,  Note: May withhold without seeking attorney general decision pursuant to Open Records Decision No. 684 (2009).

Section  Information Protected This section generally allows you to withhold the Social Security number of a living person.

Section  Information Protected Information in the custody of a governmental body that relates to an employee or officer of the governmental body if, under the specific circumstances pertaining to the employee or officer, disclosure of the information would subject the employee or officer to a substantial threat of physical harm

Exceptions You Might Think Apply, but Probably Don’t  The Health Insurance Portability and Accountability Act (HIPAA)  Section (Birth and Death Records)  Section (Application for Marriage License)

Examples of Documents Found in General Personnel Files

Sample: Election Form

Sample: Résumé

[ ] Sample: Resume

[ ] Sample: Resume [ ]

Sample: Application pg. 1

[ ]

Sample: Application pg. 1 [ ] [ ]

Sample: Application pg. 1 [ ] [ ] [ ]

Sample: Application pg. 1 [ ] [ ] [ ] [ ]

Sample: Application pg. 2

[ ]

Sample: Application pg. 3

[ ]

Sample: Letter of Reference

[ ]

Sample: Letter of Reference [ ] [ ]

Sample: Applicant Background Check

[ ]

Sample: Applicant Background Check [ ] [ /common- law privacy] ( )

Sample: Fingerprints

[ ]

Sample: Fingerprints [ ] [ with Gov’t Code]

Sample: Psychological Evaluation

Withhold 1 page with Health & Safety Code

Sample: SSN Card and Driver’s License

[ ]

Sample: SSN Card and Driver’s License [ ] [ ]

Sample: Direct Deposit Authorization

Withhold 1 page – with common-law privacy

Sample: Insurance Enrollment

[ common- law privacy]

Sample: Insurance Enrollment [ ] [ common- law privacy]

Sample: Accommodation Request

Withhold 1 page with ADA

Sample: Employee Evaluation

Sample: Doctor’s Note

Withhold 1 page – with MPA

Sexual Harassment Investigation without Adequate Summary of the Investigation Sample: Sexual Harassment

Sample: Sexual Harassment - Complaint

[ with common-law privacy and Ellen]

Sample: Sexual Harassment - Accused

[ with common-law privacy and Ellen]

Sample: Sexual Harassment - Polygraph

Withhold 1 page with Occ. Code

Sexual Harassment Investigation with Adequate Summary of Investigation Sample: Sexual Harassment

Sample: Sexual Harassment - Summary

[ with common- law privacy and Ellen]

Sample: Sexual Harassment - Summary [ with common- law privacy and Ellen] [ Occ.]

Sample: Sexual Harassment - Complaint

Withhold 1 page with common-law privacy and Ellen

Sample: Sexual Harassment - Accused

[ with common-law privacy and Ellen]

Sample: Sexual Harassment - Polygraph

Withhold 1 page with common-law privacy and Ellen

Questions? OAG’s Open Government Hotline (877) OPEN-TEX ( ) (512) 478-OPEN (6736) OAG Website