Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
October 1, 1981
MARK WHITE
Attorney General
T. W. Meek, Director opinion No. MW-372
Texas National Guard Armory Board
West Austin Station Re: Availability of personnel
Austin, Texas 78763 files under Open Records Act
Dear Mr. Meek:
You have requested our opinion on the standards for releasing
under the Open Records Act personnel file information held by your
4824
Alt-meAve..
suite
160 agency.. You have submitted sample files which contain, inter alia,
ElPao.lx 7eex applications for employment, illness and injury reports, letters of
*I-
reprimand and cosonendation, staff memoranda and copies of agency
regulations, records of salary changes, requests for promotion,
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202 notices of resignation, W-4 forms and complaints filed with the Equal
nowmn.Tx.77Lv2 Employment Opportunity Commission.
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Section 3(a)(2) of the Open Records Act excepts from disclosure:
information in personnel files, the disclosure of
which would constitute a clearly unwarranted
invasion of personal privacy....
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Mcubn. TX. 7s501 Section 3(a)(l), on the other hand, recognizes constitutional and
512/882447 common law privacy. We have frequently considered the scope of each
of these standards. See, e.g., Open Records Decision Nos. 269. 268,
264 (1981); 262, 260, 257 (1980). We have thoroughly examined all
documents in each of these files, and, as in Open Records Decision No.
260, we do not believe that any of them satisfy the requirements
imposed for constitutional, common law or employee privacy. However,
were any such records to include information excepted by a right of
privacy, it should be withheld in accordance with the standards
articulated in Open Records Decision No. 262. In addition, the W-4
forms are excepted from public disclosure by federal law. See 26
U.S.C. §blO3(=)(2). (b)(2)(A), (p)(8). See also Attorney General
Opinions H-1274 (1978); H-1070 (1977). Otherwise, none of the
information of the type you have submitted is ordinarily excepted from
disclosure under sections 3(a)(l) or 3(a)(2) of the act.
Section 3(a)(ll) excepts:
p. 1244
T. W. Meek - Page 2 (MU-372)
inter-agency or intra-agency memorandums or
letters which would not be available by law to a
party other than one in litigation with the
agency.
Section 3(a)(ll) has long been construed to except only those portions
of a document which consist of advice, opinion and recommendations.
Severable facts may ordinarily be revealed. Open Records Decision
Nos. 273 (1981); 239 (1980). The purpose of 3(a)(ll) is:
to protect from disclosure advice and opinion on
policy matters and to encourage open and frank
discussion between subordinate and chief
concerning administrative action.
Attorney General Opinion H-436 (1974): See also Open Records Decision
Nos. 174 (1977); 128 (1976); 86 (1975). In Open Records Decision No.
239 (1980), for example, we held that a college president's
recommendations to the Board of Regents regarding faculty tenure were
excepted under section 3(a)(ll).
In our opinion, those personnel files submitted to us which
consist of recommendations for promotion, letters of reprimand and
letters of commendation fall within this category.
SUMMARY
With certain stated exceptions, material in
personnel files submitted by the National Guard
Armory Board is ordinarily available to the public
under the Open Records Act.
MARK WHITE
Attorney General of Texas
JORN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
p. 1245
T. W. Meek - Page 3 (I%372)
APPROVED:
OPINION COMMITTEE
Susan L. Garrison. Chairman
Jon Bible
Walter Davis
Rick Gilpin
Jim Moellinger
Bruce Youngblood
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