Open Records Decision No. 350
December 31, 1982

Re:  Complaints against Houston police officers and resulting internal investigation

Honorable Kathryn J. Whitmire
Mayor of the City of Houston
P. O. Box 1562
Houston, Texas  77251

Dear Ms. Whitmire:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to whether information about complaints filed against Houston police 
officers and information regarding the resulting internal investigations are available to 
the public.  The specific information requested consists of the following:

	1.	sworn complaints against police officers filed by (a) private 
citizens and (b) other officers since 1977;

	2.	written responses of the officers to such complaints;

	3.	the final determination of such complaints;

	4.	letters advising of any disciplinary action related thereto; 
and

	5.	details of any lawsuit filed by or against the Houston Police 
Department as a result of such complaints.

You suggest that some or all of this material is excepted from disclosure by one or more 
of the following exceptions:

	(1)	information deemed confidential by law, either 
Constitutional, statutory, or by judicial decision;

	(2)	information in personnel files, the disclosure of which 
would constitute a clearly unwarranted invasion of personal privacy; 
provided, however, that all information in personnel files of an 
individual employee within a governmental body is to be made 
available to that individual employee or his designated 
representative as is public information under this Act;

	(3)	information relating to litigation of a criminal or civil 
nature and settlement negotiations, to which the state or political 
subdivision is, or may be, a party, or to which an officer or 
employee of the state or political subdivision, as a consequence of 
his office or employment, is or may be a party, that the attorney 
general or the respective attorneys of the various political 
subdivisions has determined should be withheld from public 
inspection;

	. . . .

	(7)	matters in which the duty of the Attorney General of Texas 
or an attorney of a political subdivision, to his client, pursuant to the 
Rules and Canons of Ethics of the State Bar of Texas are prohibited 
from disclosure, or which by order of a court are prohibited from 
disclosure;

	(8)	records of law enforcement agencies that deal with the 
detection and investigation of crime and the internal records and 
notations of such law enforcement agencies which are maintained 
for internal use in matters relating to law enforcement;

	. . . .

	(11)	inter-agency or intra-agency memorandums or letters 
which would not be available by law to a party other than one in 
litigation with the agency.

	A similar request was the subject of Open Records Decision No. 208 (1978).  In 
that decision, this office said that the names of complainants who had filed formal 
complaints with a police department's internal affairs division, the names of the officers 
who were the subjects of such complaints, and the final disposition of the complaints 
constituted public information.

	As to the first request here, we believe that, in general, copies of the complaints, 
as well as the names of complainants, are available to the public.  Open Records Decision 
No. 315 (1982).  Certain information contained therein might be excepted by section 
3(a)(1), if disclosure would contravene constitutional or common law privacy, but such 
determinations would have to be made on a case-by-case basis.  See Open Records 
Decision Nos. 318 (1982); 273 (1981); 257 (1980).  If a lawsuit has been filed as a result 
of the complaint or if litigation is reasonably anticipated, the complaint may be withheld 
during the pendency of the litigation.  See Open Records Decision Nos. 289; 288 (1981).  
The same result would obtain as to the officer's written response to a complaint.  Some 
material contained therein might be excepted by constitutional or common law privacy 
under section 3(a)(1), or by section 3(a)(3), but individual determinations would be 
necessary in these instances.

	A complaint filed by one officer against another and any response filed by the 
subject of a complaint are excepted under section 3(a)(11) to the extent they contain 
advice, opinion, and recommendations.  Open Records Decision Nos. 315 (1982); 298 
(1981).  A basic factual narrative of events is not excepted by section 3(a)(11).

	As to the final determination of the complaint and letters advising of disciplinary 
action, we believe that such material is available under the rationale of Open Records 
Decision No. 208 (1978).  In our opinion, release of such information would not 
constitute a “clearly unwarranted invasion of personal privacy” under section 3(a)(2).  
See Open Records Decision No. 316 (1982).

	Details of lawsuits filed by or against the Houston Police Department are 
excepted from disclosure by section 3(a)(3) so long as litigation is pending or reasonably 
anticipated.  Open Records Decision No. 289 (1981).  Whether particular litigation is 
reasonably anticipated must be determined on a case-by-case basis.  When litigation has 
been concluded, section 3(a)(3) no longer acts to except material related thereto.

	We must add a note about section 3(a)(8).  If a complaint which might result in 
criminal charges is under active investigation, most of the material may be withheld 
under section 3(a)(8) during the pendency of the investigation and prosecution.  See 
Open Records Decision Nos. 252 (1980); 127 (1976).  If no criminal prosecution results, 
we do not believe that section 3(a)(8) in general acts to except material relating to 
complaints against police officers.  Open Records Decision No. 315 (1982).  In certain 
instances, however, the Houston Police Department may determine that the release of 
specific information related thereto “will unduly interfere with law enforcement and 
crime prevention.”  Ex parte Pruitt, 551 S.W.2d 706, 710 (Tex. 1977); Open Records 
Decision Nos. 313 (1982); 297 (1981).  In such cases, the department may seek to 
withhold the particular information about which such a determination has been made.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Richard E. Gray III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger