7 - Voice For The Defense Online

common-law privacy, or information related Waiver by Previous Disclosure
to "advice, opinion and recommendation" The PIA prohibits a governmental body
under Section 552.111. Id.
from selectively disclosing otherwise
excepted information. Tex. Gov't Code
Waiver bv Failure to Timelv Ann. 3 552.007(b) (Vernon Supp. 1999).
Seek Opinion
If a governmental body does not request an
attorney general decision as provided by
Section 552.301(a), the information
requested in writing is presumed to be
public information. Tex. Gov't Code Ann.
8 552.302 (Vernon 1994). Thegovemmental
body may thereafter only seek to
withhold the information upon a showing
of a "compelling interest." See, e.g.,
Hancock w. State Bd. of Insurance, 797
S.W.2d 379 (Tex. App.- Austin 1990, no
writ). InTex. Att'y Gen. ORD-630 (1994),
the attorney general identified some of the
circumstances that could overcome the
presumption of openness:
As a general rule, this presumption may
be overcome where the information at
issue is deemed confidential by some source
of law outside the act, and is therefore
excepted from disclosure by section 552.101,
or where the interest of a third party is at
stake. For example, where information is
confidential by statute or implicates the
privacy interests of a third party, the
information must be withheld from public
disclosure even though the governmental
body maintaining the information has failed
to make a timely request for an open records
decision. This office has also found the fact
that information constitutes a third party's
trade secret that would be excepted from
disclosure under section 552.110 a compelling
reason to withhold the information
from public disclosure. Similarly, the need
of a governmental body, other than the one
that has failed to seek our ruling within 10
days of receiving an open records request,
to prevent disclosure of the information may
provide a compelling reason sufficient to
overcome the presumption of openness.
The conclusive presumption of openness
absent a showing of "compelling interest"
adopted iri Hancock was challenged, however,
in City of Garland w. Dallas Morning
News, 969 S.W.2d 548 (Tex. App.-Dallas
1998, writ granted). In that case, the Dallas
court of appeals rejected the Hancock
standard and held that the statutory
presumption "simply shifts the burden to the
governmental entity to produce evidence
supporting its claim that an exception
applies." Id. at 556. Thecourt further found
"no basis in law for the compelling
demonstration test." Id. at 555.
In other words, the general rule is that once
the information is disclosed to anyone, the
governmental body has waived its right of
nondisclosure to subsequent requesters. See,
e.g., Tex. Att'y Gen. ORD-400 (1983).
Certain circumstances, however, do not
amount to a waiver of the right to withhold
information. For example, the PIA
specifically accords an individual or his
representative a special right of access,
beyond the right of the general public, to
information held by a governmental body
that relates to the person and that is
protected from public disclosure by laws
intended to protect that person's privacy
interests. Tex. Gov't Code Ann. S 552.023
(a) (Vernon Supp. 1999). Likewise, a
person can review his or her own personnel
file and not waive the right to assert the right
(I) Confidential by Law Exception, Tex.
Gov't Code Ann. § 552.101 (Vernon 1994)
- This section prohibits disclosure of information
"considered to be confidential by
law, either constitutional, statutory, or by
judicial decision.." This short section is extremely
significant because it incorporates
into the PIA the myriad confidentiality statutes
in the Revised Statutes and Codes, as
well as the constitutional and common law
privacy rights recognized in case authority.
In the criminal law context, this exception
has been applied to except from disclosure
the names of serious sexual assault
victims and child abuse victims. Tex. Att'y
Gen. ORD-339 (1982), ORD-628 (1994),
and ORD-393 (1983). Cf. Tex. Att'y Gen.
ORD-409 (1984) (victims of crime generally
are not protected by Section 552.101).
Moreover, the attorney general has applied
this exception to the identity of informers,
pursuant to the standards set by Rowiaro w.
United States, 353 US. 53: 59 (1957). Tex.
Att'y Gen. ORD-515 (1988). Also, the
requires a governmental bod3
vide 'a suitable cop3 of public
information within a reasonable t
the date on which the cop3 is req
to nondisclosure because such disclosure
would constitute a clearly unwarranted
invasion of personal privacy. Tex. Gov't
Code Ann. 8 552. 102(a) (Vernon Supp.
1999).
Interagency or innaagency transfers of
information likewise do not amount to
disclosures that waive a governmental body's
right to assert exceptions to disclosure. See,
e.g., Tex. Att'y Gen. JM119 (1983); Tex.
Att'y Gen. ORD-468 (1987) (disclosure to
employee of job evaluation not a waiver).
Importantly, in the criminal context, the
attorney general has recognized that the
exchange of inf~mation among litigants in
informal discovery does not constitute a
voluntary release of information, waiving
the right to claim an exception to future
requests for information. Tex. Att'y Gen.
ORD-579 (1990).
Exceptions Relevant to
Criminal Lawyers
The following exceptions may be asserted
in response to a request for information to a
governmental body in the criminal law
context:
originating names and addresses of 91 1 tapes
are confidential by law. See Tex. Health &
Safety Code Ann. § 772.318(c) (Vernon
Supp. 1999).
(2) Personnel File Exception, Tex. Gov't
Code Ann.§ 552.102 (Vernon 1994 and
Vernon Supp. 1999) -This section excepts
information in a personnel file, the
disclosure of which would constitute a
clearly unwarranted invasion of personal
privacy. This standard includes records
related to "sexual assaults, victims of
mental or physical abuse in the workplace,
illegitimate children, psychiatric patients,
persons who attempted suicide, or persons
suffering injuries to sexual organs." Hubert
w. Harte-Hanks Texas Newspapers, Inc., 652
S.W.2d 546,551 (Tex. App.-Austin 1983,
writ ref'd n.r.e.); see also Modes w. Ellen,
840 S.W.2d519, (Tex. App.-El Paso 1992,
writ denied) (construing privacy language
to include statements given under threat of
professional discipline that concern "highly
embarrassing, offensive and unprofessional
conduct in the workplace, witnesses'
dating and sexual relationships, state of
marriages, and other highly personal
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