Attorney General Letter

October 18, 2022 The Honorable Ken Paxton TEXAS ATTORNEY GENERAL Office of the Attorney General Attn: Open Records Division P. 0. Box 12548 Austin, Texas 78711-2548 Re: Opinion on Public Information Request (Ch. 552, Government Code) Dear Mr. Paxton: On October 11, 2022, the McLennan County Sheriff's Department received a public information request for an employee file. A true and correct copy of the request is attached hereto as Exhibit "A". The majority of this file we have no issue releasing; however, there are a few documents in this file that speak about the mental health issues of various individuals, have family of officers mentioned by name, and the supposed sexual orientation of a different county employee is mentioned, since this information is of an intimate/embarrassing/secure nature, we are hesitant to release it without your guidance. Your office has said: “Section 552.101 of the Government Code excepts from disclosure “information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code§ 552.101. Section 552.101 encompasses the common-law right of privacy, which protects information if it (1) contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). The types of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation include information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. Generally, only highly intimate information that implicates the privacy of an individual is withheld. However, in certain instances, where it is demonstrated that the requestor knows the identity of the individual involved, as well as the nature of certain incidents, the entire report must be withheld to protect the individual's privacy." Section 552.101 also incorporates constitutional privacy.356 The United States Constitution protects two kinds of individual privacy interests: (1) an individual’s interest in independently making certain important personal decisions Sheriff Parnell McNamara McLennan County 901 Washington Avenue Waco, Texas 76701 • 254-757-5095 www.co.mclennan.tx.us “Your Safety Comes First” about matters that the United States Supreme Court has stated are within the “zones of privacy,” as described in Roe v. Wade357 and Paul v. Davis358 and (2) an individual’s interest in avoiding the disclosure of personal matters to the public or to the government.359 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.360 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.”361 Regarding the family members of officers being mentioned, we are also citing Section 552.117: Confidentiality of Certain Addresses, Telephone Numbers, Social Security Numbers, and Personal Family Information which says: (a) [I]nformation that relates to the home address, home telephone number, emergency contact information, 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; I am informing the Requestor of this request for an opinion by copy of this letter. Enclosed herewith as Exhibit "B" is the responsive information, for your review. The requester will not receive this information. Thank you in advance for your prompt attention to this request. Sincerely, Lisa Foster McLennan County Sheriff's Department Records Division 901 Washington Ave Waco, Texas 76701 P: 254-757-5108; F: 254-757-5091 cc: Bernadette Feazell MuckRock News DEPT MR 135017 263 Huntington Ave Boston, MA 02115