1. 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

2. Exceptions that Most Commonly Apply to Ordinary Personnel Files Section 552.101  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 552.101, you should cite the specific statute or privacy principle AND explain why you believe it applies to the requested records.

3. Section 552.101 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).

4. 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 552.101 and Statutes (Slide 2 of 7)

5. Section 552.101 and Statutes (Slide 3 of 7) Section 560.003 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 1703.306 of the Occupations Code  Information Protected Information acquired from a polygraph examination

6. Section 552.101 and Statutes (Slide 4 of 7) Section 159.002 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

7. Section 552.101 and Statutes (Slide 5 of 7) Section 611.002 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

8. Section 552.101 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

9. Section 552.101 and Statutes (Slide 7 of 7) Section 143.089(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.

10. Section 552.101 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.

11. Section 552.101 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.

12.  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 552.101 and Common-Law Privacy (Slide 3 of 4)

13.  BUT… Common-law privacy lapses at death. An individual has a right of access under section 552.023 of the Government Code to his or her own information that is otherwise protected by common-law privacy. Section 552.101 and Common-Law Privacy (Slide 4 of 4)

14. Section 552.102(a)  Information Protected Tex. Comptroller of Pub. Accounts v. Attorney Gen. of Tex., the Texas Supreme Court held Section 552.102(a) protects the birth date of an employee of a governmental body in a record maintained by his/her employer in an employment context.

15. Section 552.117(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

16. Section 552.024(c)  You may redact information subject to Section 552.117 without requesting a decision if the current or former employee or official at issue timely elected to withhold such information.  Section 552.024(c-2) states you must provide the requestor with a form containing (1) a description of the information withheld, (2) a citation to Section 552.024, and (3) instructions for how a requestor can request an opinion from our office.  Under Section 552.024(c-1), the requestor is entitled to seek a decision from our office as to whether the information you redacted was properly withheld.

17. Section 552.117(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

18. Section 552.1175  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

19. Section 552.1175(f)  You may redact information protected by Section 552.1175(b) without requesting a decision from our office.  Section 552.1175(h) states you must provide the requestor with a form containing (1) a description of the information withheld, (2) a citation to Section 552.1175, and (3) instructions for how a requestor can request an opinion from our office.  Under Section 552.1175(g), the requestor is entitled to seek a decision from our office as to whether the information you redacted was properly withheld.

20. Section 552.117 compared with section 552.1175 Must tell us…552.117(a)(1)552.117(a)(2)552.1175 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)

21. Section 552.122  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.

22. Section 552.130  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

23. Section 552.130(c)  You may redact information subject to section 552.130 without requesting a decision from our office.  Section 552.130(e) states you must provide the requestor with a form containing (1) a description of the information withheld, (2) a citation to Section 552.130, and (3) instructions for how a requestor can request an opinion from our office.  Under Section 552.130(d), the requestor is entitled to seek a decision from our office as to whether the information you redacted was properly withheld.

24. Section 552.136  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.

25. Section 552.136(c)  You may redact information subject to Section 552.136 without requesting a decision from our office.  Section 552.136(e) states you must provide the requestor with a form containing (1) a description of the information withheld, (2) a citation to Section 552.136, and (3) instructions for how a requestor can request an opinion from our office.  Under Section 552.136(d), the requestor is entitled to seek a decision from our office as to whether the information you redacted was properly withheld.

26. Section 552.137  Information Protected Most e-mail 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).

27. Section 552.140  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, 2003.  Note: May withhold without seeking attorney general decision pursuant to Open Records Decision No. 684 (2009).

28. Section 552.147  Information Protected This section generally allows you to withhold the Social Security number of a living person.

29. Section 552.152  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

30. Exceptions You Might Think Apply, but Probably Don’t  The Health Insurance Portability and Accountability Act (HIPAA)  Section 552.115 (Birth and Death Records)  Section 552.141 (Application for Marriage License)

31. Examples of Documents Found in General Personnel Files

32. Sample: 552.024 Election Form

33. Sample: Résumé

34. [552.117] Sample: Resume

35. [552.117] Sample: Resume [552.137]

36. Sample: Application pg. 1

37. [552.117]

38. Sample: Application pg. 1 [552.117] [552.102]

39. Sample: Application pg. 1 [552.117] [552.102] [552.137]

40. Sample: Application pg. 1 [552.117] [552.102] [552.137] [552.130]

41. Sample: Application pg. 2

42. [552.1175]

43. Sample: Application pg. 3

44. [552.117]

45. Sample: Letter of Reference

46. [552.117]

47. Sample: Letter of Reference [552.137] [552.117]

48. Sample: Applicant Background Check

49. [552.117]

50. Sample: Applicant Background Check [552.117] [552.101/common- law privacy] ( )

51. Sample: Fingerprints

52. [552.117]

53. Sample: Fingerprints [552.117] [552.101 with 560.003 Gov’t Code]

54. Sample: Psychological Evaluation

55. Withhold 1 page - 552.101 with 611.002 Health & Safety Code

56. Sample: SSN Card and Driver’s License

57. [552.117]

58. Sample: SSN Card and Driver’s License [552.117] [552.130]

59. Sample: Direct Deposit Authorization

60. Withhold 1 page – 552.101 with common-law privacy

61. Sample: Insurance Enrollment

62. [552.101 + common- law privacy]

63. Sample: Insurance Enrollment [552.117] [552.101 + common- law privacy]

64. Sample: Accommodation Request

65. Withhold 1 page - 552.101 with ADA

66. Sample: Employee Evaluation

67. Sample: Doctor’s Note

68. Withhold 1 page – 552.101 with MPA

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

70. Sample: Sexual Harassment - Complaint

71. [552.101 with common-law privacy and Ellen]

72. Sample: Sexual Harassment - Accused

73. [552.101 with common-law privacy and Ellen]

74. Sample: Sexual Harassment - Polygraph

75. Withhold 1 page - 552.101 with 1703.306 Occ. Code

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

77. Sample: Sexual Harassment - Summary

78. [552.101 with common- law privacy and Ellen]

79. Sample: Sexual Harassment - Summary [552.101 with common- law privacy and Ellen] [552.101 + 1703.306 Occ.]

80. Sample: Sexual Harassment - Complaint

81. Withhold 1 page - 552.101 with common-law privacy and Ellen

82. Sample: Sexual Harassment - Accused

83. [552.101 with common-law privacy and Ellen]

84. Sample: Sexual Harassment - Polygraph

85. Withhold 1 page - 552.101 with common-law privacy and Ellen

86. Questions? OAG’s Open Government Hotline (877) OPEN-TEX (673-6839) (512) 478-OPEN (6736) OAG Website https://www.texasattorneygeneral.gov/og/open-government