We don’t know exactly what the 79 pages of documents say. But we do know that the former superintendent claims that they contain information which is “confidential by law.” Therefore, the argument goes, they should not be disclosed to the media or the public. However, the Attorney General issued an opinion stating that the records are not confidential. Now the Court of Appeals has agreed with the AG’s assessment.
This began when a school employee filed a sexual harassment complaint against the superintendent, alleging that the harassment occurred at “an out-of-town conference related to education and the employee’s work with the District.” Now the fight is over many of the documents pertaining to the complaint and the district’s handling of it.
The Public Information Act (PIA) requires the disclosure of public information when requested, but contains numerous exceptions. This case involves the very first exception set out in the law:
Information is excepted from the requirements of Section 552.021 if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Texas Government Code 552.101.
Previous cases have interpreted this exception to apply to information that “contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person” if “the information is not of legitimate concern to the public.” Note: both conditions have to be met for the information to be kept private. The information must be “highly objectionable” and also, “not of legitimate concern to the public.” The fact that disclosure may involve “highly intimate or embarrassing facts” is not enough, by itself, to prevent disclosure.
In its opinion, the 14th Court of Appeals acknowledges that “Personal information about employees that does not shed light on their official actions would not further the purposes of the statute,” and would, therefore, not be disclosed under the PIA. Public employees do retain a private sphere of activity. But if the information involves accusations of wrongdoing on the job, it moves out of the private sphere to the public. That was the ruling here. Key Quotes:
When the information concerns work conduct or job performance of public employees, it is generally not a matter of private affairs, but of public concern.
Matters of workplace harassment, discrimination, and policy violations in a governmental body are, by their very nature, generally not a “person’s private affairs.”
Each of the documents relate to the workplace harassment allegation and do not contain information about [the superintendent’s] private affairs.
This is not over. It may go to the Texas Supreme Court. In the meantime, just keep in mind that your sphere of privacy may be smaller than you thought it was. The case is Roane v. Paxton, decided by the 14th Court of Appeals on January 28, 2020.
DAWG BONE: EMBARRASSMENT IS NOT ENOUGH TO KEEP DOCUMENTS PRIVATE.
Tomorrow: Toolbox Tuesday!!