Untitled Texas Attorney General Opinion ( 2007 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 26, 2007
The Honorable Susan Combs Opinion No. GA-0572
Comptroller of Public Accounts
Post Office Box 13528 Re: Whether certain information regarding public
Austin, Texas 78711-3528 employees must be included in the Comptroller
of Public Account's public database of state
expenditures (RQ-0603-GA)
Dear Comptroller Combs:
With the 2007 enactment ofHouse Bill 3430, the Eightieth Legislature mandated the creation
of a public database of state expenditures. See Act of May 25, 2007, 80th Leg., R.S., H.B. 3430,
§ 1 (to be codified at TEX. GOV'TCODEANN. § 403.024). House Bill 3430 requires the Comptroller
of Public Accounts (the "Comptroller") to "establish and post on the Internet a database of state
expenditures, including contracts and grants, that is electronically searchable by the public except
as provided by Subsection (d) [of section 403.024]." Id. (to be codified at TEX. GOV'T CODE ANN.
§ 403.024(b)). The database is to include:
(1) the amount, date, payor, and payee of expenditures; and
(2) a listing of state expenditures by:
(A) object ofexpense with links to the warrant or check register
level; and
(B) to the extent maintained by state agency accounting
systems in a reportable format, class and item levels.
Id.
Through the referenced subsection (d), House Bill 3430 also places limitations on
information to be included in the database. See id. (to be codified at TEX. GOV'T CODE ANN.
§ 403 .024(d)). House Bill 3430 prohibits the Comptroller from "allow[ing] public access under this
section to a payee's address, except that the comptroller may allow public access under this section
to information identifying the county in which the payee is located." Id. House Bill 3430 further
prohibits the Comptroller from "allow[ing] public access under this section to information that is
identified by a state agency as excepted from required disclosure under Chapter 552 [of the
Government Code] or as confidential." Id.
The Honorable Susan Combs - Page 2 (GA-0572)
You indicate that you are concerned about consistency with regard to information your office
makes public, and you pose the following four questions l regarding your responsibility to include
state employee information in the database:
(1) Are net salary amounts paid to public employees public?
(2) Ifnet salary amounts are public, should the Comptroller withhold
that information if other agencies mark the information as protected,
pursuant to Government Code Section 403.024(d)?
(3) Is payee county address information of public [] employees
[always] public?
(4) Ifpayee county address information is always public, should the
Comptroller withhold that information if other agencies mark the
information as protected, pursuant to Government Code Section
403.024(d)?
Request Letter, supra note 1, at 1.
House Bill 3430 itself does not classify information as public or private. See generally Act
of May 25, 2007, 80th Leg., R.S., H.B. 3430, § 1 (to be codified at TEX. GOV'T CODE ANN.
§ 403.024(b)). Rather, it simply requires that all state expenditures be included in a public database,
except for information "identified by a state agency as excepted from required disclosure under
Chapter 552 or as confidential." Id. (to be codified at TEX. GOV'T CODE ANN. § 403.024(b), (d)).
It is chapter 552 of the Government Code, or the Public Information Act (the "PIA"), that
classifies information as public and makes it available to the public. See TEX. GOV'T CODE ANN.
ch. 552 (Vernon 2004 & Supp. 2006). Public infoll1).ation is defined under the PIA as "information
that is collected, assembled, or maintained under a law or ordinance or in connection with the
transaction of official business ... by a governmental body." Id. § 552.002 (Vernon 2004). Salary
information of public employees falls within the PIA's definition of public information. See id.
§ 552.002(a). And it is included in the categories of information that the PIA specifically makes
public. See id. § 552.022(a).
Section 552.022 provides that the "name, sex, ethnicity, salary, title, and dates ofemployment
of each employee . . . of a governmental body" are public information and "not excepted from
required disclosure ... unless ... expressly confidential under other law." Id. § 552.022(a)(2).
Neither the PIA nor any other Texas statute or judicial opinion defines the term "salary" under
section 552.022 or indicates whether the term encompasses gross salary, net salary, or both. But the
1See Letter from Honorable Susan Combs, Comptroller ofPublic Accounts, to Honorable Greg Abbott, Attorney
General ofTexas, at 1 (July 18,2007) (on file with the Opinion Committee, also available athttp://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Susan Combs - Page 3 (GA-0572)
PIA is to be liberally construed in favor of providing to the public "complete information about the
affairs of government and the official acts ofpublic officials and employees." Id. § 552.001 (a)-(b).
Thus, we presume that the salary information that is expressly made public under section
552.022(a)(2) encompasses both gross and net salary.
The PIA, however, expressly excepts from required disclosure information that is
"confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101
(confidential information); see also, e.g., id §§ 552.102-.147 (Vernon 2004 & Supp. 2006) (listing
specific exceptions).2 Information that is confidential under the common law is excepted from
required disclosure by the PIA. See id § 552.101 (Vernon 2004); see also In re City ofGeorgetown,
53 S.W.3d 328,336 (Tex. 2001). In Industrial Foundation ofthe South v. Texas Industrial Accident
Board, the Texas Supreme Court determined that information is "deemed confidential by law if (1)
the information contains highly intimate or embarrassing facts the publication of which would be
highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to
the public." Indus. Found. ofthe S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668,685 (Tex. 1976).
The Office ofthe Attorney General, in its capacity to decide whether information is excepted
from required disclosure under the PIA, has determined that "all financial information relating to an
individual ... ordinarily satisfies the first requirement of common-law privacy, in that it constitutes
highly intimate or embarrassing facts about the individual, such that its public disclosure would be
highly objectionable to a p~rson of ordinary sensibilities." Tex. Att'y Gen. ORD-545 (1990) at 3;
Tex. Att'y Gen. ORD-523 (1989) at 3; Tex. Att'y Gen. ORD-373 (1983) at 3. But such financial
information ordinarily does not satisfy the second prong ofthe test for common-law privacy because
information involving a financial transaction between an individual and a governmental body is a
matter of legitimate public interest. See Tex. Att'y Gen. ORD-590 (1991) at 3; Tex. Att'y Gen.
ORD-523 (1989) at 3-4.
, Specifically with regard to legitimate public concern over an individual's personal financial
information and transactions with the government, the Office ofthe Attorney General distinguishes
between confidential background financial information furnished to a public body about an
individual and the basic facts regarding a particular financial transaction between the individual and
the public body. See Tex. Att'y Gen. ORD-545 (1990) at 4; Tex. Att'y Gen. ORD-523 (1989) at 4.
Relying on that distinction, this office has determined that a public employee's allocation ofpart of
the employee's salary toa voluntary investment program offered by the employer is a personal
investment decision protected by common-law privacy. See Tex. Att'y Gen. ORD-600 (1992) at 9
(concerning participation in TexFlex, a flexible reimbursement account plan). Similarly, this office
has determined that common-law privacy protects, for instance, private details of an employee's
enrollment in a group insurance program,' the designation of the beneficiary of an employee's
retirement benefits, and an employee's authorization ofdirect deposit ofsalary. See ide at 9-10. And
because disclosure of net salary necessarily reveals information about a public employee's private
2See also Act ofMay 4,2007, 80th Leg., R.S., ch. 114,2007 Tex. Sess. Law Servo 130, 130-31 (adding section
552.148 to the Government Code-an exception regarding personal information maintained by a municipality pertaining
to a minor) (effective immediately).
The Honorable Susan Combs - Page 4 (GA-0572)
deductions, this office has recently determined that net salary information of public employees is
protected from disclosure. See Tex. Att'y Gen. 0R2006-01938, at 5 (stating in a letter ruling that
"employee net salary is private financial information because, by its revelation, the fact of a private
deduction can b~ ascertained"). But see Tex. Att'y Gen. 0R2007-00001, at 3 (recognizing letter
rulings are limited to the particular records at issue in a request and limited to the facts as presented);
Tex. Att'y Gen. 0R2006-01938, at 11 (same). Under this distinction, net salary information of
public employees is protected by common-law privacy if it involves confidential background
financial information about an individual. Conversely, it is not protected ifit involves only the basic
facts regarding a particular financial transaction between the individual and the public body.
As noted previously, the Legislature expressly made the salary of public employees public
but did not indicate whether the term salary meant gross salary or net salary. See supra at pp. 2-3;
TEX. GOV'TCODEANN. § 552.022(a)(2) (Vernon 2004); see also 48 Or. Ope Att'y Gen. 105 (1996)
at 3 (distinguishing between gross salary and net salary in retirement benefit context). It is the gross
salary-the total compensation paid by the public body to the individual-that reflects the basic fact
of the financial transaction between the public body and the individual. And it is the gross salary,
as the state expenditure, in which the public has a legitimate interest. Moreover, it is the state
expenditure, not the identification of employees by name, that House Bill 3430 expressly makes
public. Net salary, by contrast, is merely the amount that results after the_deductions are determined
by an individual's various personal activities and decisions. See THE NEW OXFORD AMERICAN
DICTIONARY 1149 (2001) (defining "net" as "(of an amount, value, or price) remaining after a
deduction, such as tax or a discount, has been made"). Net salary necessarily involves disclosure
of information about personal financial decisions and is confidential background financial
information about a given individual. In contrast to gross salary, confidential personal background
financial information is not of legitimate concern to the public. We therefore conclude that net
salary of public employees is protected from disclosure by common-law privac~ and may not be
included in the state expenditure database pursuant to House .Bill 3430's protection of information
excepted from disclosure under chapter 552. See Act of May 25,2007, 80th Leg., R.S., H.B. 3430,
§ 1 (to be codified at TEX. GOV'T CODE ANN. § 403.024(d)); see also In re City ofGeorgetown, 53
3The United States Constitution also protects an individual's right to keep the government from disclosing
information about the individual. See Whalen v. Roe, 429 U.S. 589, 599 (1977); Ramie v. City ofHedwig Village, Tex.,
765 F.2d 490, 492 (5th Cir. 1985). Because we have concluded that common-law privacy protects net salary information
from disclosure, we need not consider the question under constitutional principles. See City of San Antonio v.
Summerglen Prop. Owners Ass 'n, Inc., 185 S.W.3d 74, 87 (Tex. App.-San Antonio 2005, pet. denied) (recognizing
that courts will not rule on a constitutional question if the question can be resolved on other grounds). We recognize,
however, that the privacy interest of the individual against disclosure of private fmancial information weighs heavily
when balanced against the government's interest in openness of state expenditures, especially when the state's interest
is satisfied by disclosure ofgross salary. See Debate on Tex. H.B. 3430 on the Floor ofthe House, 80th Leg., R.S. (Apr.
22, 2007) (statement of Representative Mark Strama) ("This bill simply requires the government to publish all of its
expenditures on the Internet ... a one stop shop for citizens to access information about state government.") (audio tape
available from House Video/Audio Services); Hearings on Tex. HB. 3430 Before the Senate Committee on Finance,
80th Leg., R.S. (May 19, 2007) (statement of Senator Glenn Hegar, Jr.) ("This bill is essentially about trying to have
more open government by creating a single searchable centralized database to all state expenditures that allows citizens
to easily access that information by having it at one central site.") (audio tape available from Senate Staff Services
Office).
The Honorable Susan Combs - Page 5 (GA-0572)
S.W.3d at 336 (recognizing that section 552.101 is "other law" that makes information confidential
for purposes of section 552.022). Because your second question is contingent upon a contrary
conclusion, we need not address it.
We find no statute making a payee's county-of-residence information expressly public or
private. County-of-residence information is likely not protected under common-law privacy
principles in that it does not implicate the first prong of the Industrial Foundation test. Ordinarily,
county-of-residence information is not information that "contains highly intimate or embarrassing
facts the publication ofwhich would be highly objectionable to a reasonable person." Indus. Found.,
540 S.W.2d at 685; see also Tex. Att'y Gen. ORD-455 (1987) at 5 (concluding that home addresses
ordinarily do not qualify as a kind of"intimate aspect[] ofhuman affairs"). Thus, we do not believe
county-of-residence information of public employees is ordinarily protected under common-law
privacy.
The determination that this information is generally not protected does not, however, address
what information the Comptroller should exclude from the database. House Bill 3430 does not
expressly require county-of-residence information of public employees to be included in the
database. By its terms, section 403 .024(d) is permissive, providing that the Comptroller "may" allow
access to the information. See Act of May 25, 2007, 80th Leg., R.S., H.B. 3430, § 1 (to be codified
at TEX. GOV'T CODE ANN. § 403.024(d)) (stating that "the comptroller may allow public access
under this section to information identifying the county in which the payee is located"); TEX. GOV'T
CODE ANN. § 311.016(2) (Vernon 2005) (providing that absent a contrary indication, "'May' creates
discretionary authority or grants permission or a power"). Thus, the Comptroller may, but is not
required to, include in the database county-of-residence information ofpublic employees. That being
said, the Comptroller may not include i~ the database county-of-residence information of public
employees if that information has been identified to the Comptroller by a state agency as excepted
from required disclosure under chapter 552 or as confidential.
The Honorable Susan Combs - Page 6 (GA-0572)
SUMMARY
Under the Public Information Act, the gross salary of public
employees is public information. In contrast to gross salary, net
salary necessarily involves disclosure ofpersonal financial decisions.
Net salary is confidential background financial information protected
from disclosure by common-law privacy. Although the Comptroller
ofPublic Accounts should disclose gross salary, the Comptroller may
not include net salary information of public employees in the state
expenditure database pursuant to House Bill 3430.
House Bill 3430 permits, but does not require, the
Comptroller to include the county-of-residence information ofpayees
in the state expenditure database. It prohibits the Comptroller from
including the information in the database if the information is
identified by a state agency as excepted from required disclosure
under the Public Information Act or as confidential.
KENT C. SULLIVAN
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee