KEN PAXTON ACEORNEY GENERAL OF TEXAS June 18, 2019 OR2019-16488 Dear Ms. Dymond: ‘You ask whether certain information is subject to required public disclosure under the Public Information Act (the Act”), chapter 552 of the Government Code. Your request was assigned ID# 768915. Stephen F. Austin State University (the “university”) received a request for four categories of information pertaining to anamed individual, university policy, and certain investigations, You state the university will redact information protected by section 552.117(a)(1) of the Government Code pursuant to section 552.024(c)(2) of the Government Code.' You claim the submitted information is excepted from disclosure under sections 552.101 and 552.107 of the Government Code.” We have considered the exceptions you claim and reviewed the submitted information. Initially, we note the submitted information contains a press release. Section 552.007 of the Government Code provides information that has been voluntarily released to a member of the public may not subsequently be withheld from another member of the public, unless public disclosure of the information is expressly prohibited by law or the information is confidential under law. See Gov't Code § 552.007; Open Records Decision Nos. 518 at 3 ' Section 552.024(c)(2) ofthe Government Code authorizes a governmental body toredactinformation protected by section 552.117(a)(I) of the Government Code without the necessity ofrequestinga decision under the Act ifthe current or former employee or official to whom the information pertains timely chooses not to allow public access to the information. See Gov't Code § $52.024()(2). 2Wenotethe university didnot comply with the requirements of section 52.301) ofthe Government Coden providing the information at issue. See Gov't Code § 552.301(e). Nonetheless, because section 552.101 ofthe Government Code andthe attorney-client privilege can provide compelling reasons to overcome the presumption of openness, we will consider the applicability of sections 552.(01 and 552.107 of the Government Code to the submitted information. See id. § 552.302; see also Paxton v. City of Dallas, 509 S.W.36 247 (Tex. 2017). Post Office Box 12548, Austin, Texas 78711-2548 + ($12) 463-2100 + wwurtexasattorneygenesalgovMs. Kirsty Dymond - Page 2 (1989), 490 at 2 (1988). Accordingly, the university may not withhold previously released information unless its release is expressly prohibited by law or the information is confidential under law. Although you raise section 552.107 of the Government Code, this provision does not expressly prohibit release of the information at issue or make information confidential. See Gov't Code § 552.007; Open Records Decision No. 665 at 2 n.5 (2000) (discretionary exceptions generally). Therefore, the university may not withhold the press release, which ‘we marked, under section 552.107 of the Government Code. However, because section 552.101 of the Government Code can make information confidential for the purposes of section 552,007, we will consider the university's argument under this section for the press release. Next, we note some of the remaining information is subject to section 552.022 of the Government Code. Section 552.022 provides in part: (@) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure unless made confidential under this chapter or other law: (1) a completed report, audit,.evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108; [and] (15) information regarded as open to the public under an agency's policies] Gov't Code § 552.022(a)(1), (15). We note submitted information contains completed investigations subject to section $52,022(a)(1). The university must release this information pursuant to section 552.022(a)(1) unlessitis excepted from disclosure under section 552.108 of the Government Code or expressly made confidential under the Act or other law. See i. § 552.022(a)(1). Additionally, some of the submitted information consists of an employee policy, which we note the university posts on its website. Thus, we find the university considers this information to be open to the public under the university's policies, and therefore, is subject to section 552.022(a)(15). The university must release this information pursuant to section 552,022(a)(15), unless it is made confidential under the Act or other law. See id. § 552.022{a)(15). Although you seek to withhold the information subject to section 552.022 under section 552.107 of the Government Code, this section is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See Open Records Decision No, 676 at 6 (2002) (attorney-client privilege under Gov't Code §552.107(1) may be waived); see also ORD 665 at2. Thus, the university may not withhold this information under section 552.107 of the Government Code. However, the Texas ‘Supreme Court has held the Texas Rules of Evidence are “other law” that make information expressly confidential for the purposes of section 552.022. Jn re City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001). Therefore, we will consider your assertion of the attorney-Ms. Kirsty Dymond - Page 3 client privilege under Texas Rule of Evidence 503. Further, because section 552.101 protects information made confidential under law, we will consider your arguments under section 552.101 for the submitted information. Additionally, we will consider your argument under section.552.107 for the information not subject to section 552.022. 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 doctrine of common-law privacy, which protects information that is (1) highly intimate or embarrassing, the publication of which ‘would be highly objectionable to a reasonable person, and (2) not of legitimate concern to the public. Indus. Found. v, Tex. Indus, Accident Bd., 540 8.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both prongs of this test must be satisfied. Jd. at 681-82. Types of information considered intimate and embarrassing by the ‘Texas Supreme Court are delineated in Industrial Foundation. Id. at 683. In Morales v. Ellen, 840 8.W.2d $19 (Tex. App—El Paso 1992, writ denied), the court addressed the applicability of the common-law privacy doctrine to files of an investigation of allegations of sexual harassment, The investigation files in Hllen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating the public’s interest was sufficiently served by the disclosure of such documents. Jd In concluding, the Ellen court held “the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released.” /d. Thus, if there is an adequate summary of an investigation of alleged sexual harassment, the investigation summary must be released under Ellen, along with the statement of the accused, but the identities of the victims and witnesses of the alleged sexual harassment must be redacted, and their detailed statements must be withheld from disclosure. See Open Records Decision Nos. 393 (1983), 339 (1982). However, when no adequate summary exists, detailed statements regarding the allegations must be released, but the identities of victims and witnesses must still be redacted from the statements, In either case, the identity of the individual accused of sexual harassment is not protected from public disclosure. We also note supervisors are generally not witnesses for purposes of Ellen, except where their statements appear in a non-supervisory context. However, the right to privacy is a personal right that lapses at death and the common-law right to privacy does not encompass information that relates only to a deceased individual. Moore y. Charles B. Pierce Film Enters, inc., 589 8.W.2d 489, 491 (Tex. Civ. App-—Texarkana 1979, writre?'dn.r-e.); see also Justice v. Belo Broad. Corp., 472. Supp. 145, 147 (N.D. Tex, 1979) (“action for invasion of privacy can be maintained only by a living individual whose privacy is invaded” (quoting RESTATEMENT (SECOND) OF TORTS $6521 (1977))); Attorney General Opinions JM-229 (1984) (“the right of privacy lapses upon death”), H-917 (1976) (“We are ... of the opinion that the Texas courts would follow the almost uniform rule of other jurisdictions that the right of privacy lapses upon death.”); Open Records Decision No. 272 (1981) (“the right of privacy is personal and lapses upon death”).