Attorney General Opinion GA-0572

ATTORNEY GENERAL OF TEXAS GREG ABBOTT September 26, 2007 The Honorable Susan Combs Comptroller ofPublic Accounts Post Office Box 13528 Austin, Texas 78711-3528 Dear Comptroller Combs: Opinion No. GA-0572 Re: Whether certain information regarding public employees must be included in the Comptroller of Public Account's public database of state expenditures (RQ-0603-GA) Withthe 2007 enactmentofHouse Bill 3430, the Eightieth Legislature mandatedthe 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) [ofsection 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 ofexpenditures; and (2) a listing of state expenditures by: (A) objectofexpense 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 thatyou are concerned about consistencywith regard to informationyour office makes public, and you pose the following four questionsl 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, shouldthe Comptrollerwithhold that information ifother 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 itselfdoes 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 ofofficial 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 thatthe "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, ComptrollerofPublic 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 ofproviding to the public "complete information about the affairs ofgovernment 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 IndustrialAccident 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 oflegitimate 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 capacityto 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 ofcommon-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 ofordinary 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 satisfythe second prong ofthe test for common-lawprivacy 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 ofnet 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 GovernmentCode-an exceptionregarding personal information maintained by a municipalitypertaining 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 ofa 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 onlythe basic facts regarding a particular financial transaction between the individual and the public body. As noted previously, the Legislature expressly made the salary ofpublic 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 bodyto the individual-that reflects the basic fact ofthe 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 ofinformation excepted from disclosure under chapter 552. See Act ofMay 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 concludedthat common-lawprivacy 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 ifthe question can be resolved on other grounds). We recognize, however, that the privacy interest ofthe 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 ofthe Industrial Foundation test. Ordinarily, county-of-residence information is not information that "contains highly intimate or embarrassing facts the publicationofwhichwould 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 determinationthat this information is generallynotprotected 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, section403.024(d) is permissive, providingthatthe Comptroller"may" allow access to the information. See Act ofMay 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 sectionto information identifying the county in which the payee is located"); TEX. GOV'T CODEANN. §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 inthe database county-of-residence informationofpublic employees. Thatbeing said, the Comptroller may not include i~ the database county-of-residence information of public employees ifthat 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 ofpublic employees is public information. In contrast to gross salary, net salarynecessarily involves disclosure ofpersonal financial decisions. Net salary is confidential background financial informationprotected 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 Comptrollerto include the county-of-residence informationofpayees 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