Open Records Decision No. 444
October 22, 1986

	Re:  Whether the Open Records Act, article 6252-17a, V.T.C.S., requires the 
sheriff of Orange County to release certain information

Honorable Stephen C. Howard
Orange County Attorney
Courthouse
Orange, Texas  77630

Dear Mr. Howard:

	The Orange Leader has submitted to your office and to Orange County Sheriff 
James Wade several requests for information.  This decision will discuss the extent to 
which the Open Records Act, article 6252-17a, V.T.C.S., entitles the Leader to this 
information.  We note that there is in this instance some dispute as to whether some of 
the information requested by the Leader has been supplied to it.  Because this office 
cannot resolve fact questions, we cannot determine the extent to which the Leader’s 
requests have been granted; instead, we will address the Leader’s requests in their 
entirety.  Before doing so, however, we shall summarize the history of this controversy.

	Of the requests submitted by the Leader in recent months, none were initially 
granted.  Neither your office nor Sheriff Wade, moreover, asked this office to rule on the 
legality of any of these denials within the ten-day period established by section 7(a) of 
the Open Records Act.  After failing to obtain the desired information, the Leader 
contacted this office for assistance.  This precipitated a series of communications 
between this office and both you and Sheriff Wade, the purpose of which was to achieve 
an informal resolution of this dispute.  Letters were sent informing both you and Sheriff 
Wade that most of the information sought by the Leader was public information, and 
representatives of this office have conferred with Sheriff Wade to reiterate that fact.  At 
these meetings, assurances were given that most of the requested information would be 
furnished to the Leader.  As of this date, however, the Leader and the sheriff continue to 
dispute the extent to which the Leader’s requests for information have been granted.  The 
Leader, moreover, claims that it is on some occasions allowed to inspect jail records that 
it has requested, but that it is at other times not allowed to see the same records.

	In a letter dated June 13, 1986, the Leader informed this office that it has asked 
Sheriff Wade to release the following information:

	1.	the prisoner jail cards of the sheriff's department, whether 
or not the arrestee has been released on bond;

	2.	the department's dispatch cards;

	3.	the department's general offense reports, 'on which the 
Department has frequently removed the names of complainants and 
suspects, has deleted the description of the offense, or has withheld 
access altogether';

	4.	information relating to disciplinary action that has been 
taken by the department against [four named individuals] (current 
and former employees of the department); including but not limited 
to the dates of such disciplinary action; the punishment assessed; all 
factual details giving rise to the disciplinary action; and any written 
findings regarding the reasons for the action taken;

	5.	information relating to an internal department investigation 
into an April 12, 1986 shooting incident involving [a named 
individual];

	6.	information relating to the reason that the department 
dismissed [a named individual] from the force;

	7.	information relating to the reasons for the promotion or 
demotion of [two named individuals] by the department;

	8.	information regarding the age, law enforcement 
background, previous experience, and employment record of [two 
named individuals] including information relating to the reasons 
why either individual resigned or was terminated from any of his 
previous jobs.

The names in question are referenced in the Leader’s letter of June 13, a copy of which is 
hereby made a part of this opinion.

	In a letter to this office, Sheriff Wade argued that the information in item eight 
could be withheld for these reasons:

This information is part of the employees personnel files.  While the 
employees have a right to view their own files the information is not 
subject to public disclosure.

These reasons also apply to some of the information in items numbered one through 
seven, and we shall therefore consider them first.

	Section 3(a) of the Open Records Act provides that "[a]ll information collected 
. . . by governmental bodies . . . in connection with the transaction of official business is 
public information . . . with the following exceptions only. . . ."  (Emphasis added).  
Information in a public employee's personnel file is within this definition and is therefore 
available to the public unless it is also within a section 3(a) exception.  It is thus incorrect 
to state that employees' personnel files are never subject to public disclosure.  Second, 
this office held in 1981 that employees have no special right of access entitling them to 
inspect their personnel files.  Open Records Decision No. 288 (1981).  On the contrary, 
their right to inspect their personnel files is coextensive with the right of the public to do 
so.  Accordingly, employees have no unrestricted right to view their own files.

	One section 3(a) exception that may apply to personnel file information is section 
3(a)(2), which excepts that information from required public disclosure if its release 
would cause a "clearly unwarranted invasion of personal privacy."  Hubert v. Harte-
Hanks Texas Newspapers, Inc., 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd 
n.r.e.), however, establishes that such an invasion occurs only if the release of personnel 
file information would cause an invasion of privacy tort under the standards of Industrial 
Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 
1976).  Under Industrial Foundation, this tort occurs when information is publicly 
disseminated even though it is highly intimate or embarrassing such that a reasonable 
person would object to its release and the public has no legitimate interest in it.  Id. at 
685.

	Even if information in the personnel file of an employee of the sheriff's 
department was found to be highly intimate or embarrassing, that information would very 
likely still be available to the public under Industrial Foundation.  The public has an 
obvious interest in having access to information concerning the qualifications and 
performances of governmental employees, particularly employees who hold positions as 
sensitive as those held by members of a sheriff's department.  Indeed, insuring that the 
public would have access to information that would enable it to keep track of its public 
servants was one of the dominant motives of the legislature which enacted the Open 
Records Act.  This purpose is made clear by section 1 of the act, which states in part:

[A]ll persons are, unless otherwise expressly provided by law, at all 
times entitled to full and complete information regarding the affairs 
of government and the official acts of those who represent them as 
public officials and employees.  The people, in delegating authority, 
do not give their public servants the right to decide what is good for 
the people to know and what is not good for them to know.  The 
people insist on remaining informed so that they may retain control 
over the instruments they have created.

V.T.C.S. art. 6252-17a, §1.

	In Open Records Decision Nos. 342, 329 (1982) and 298 (1981), this office held 
that certain information about public employees, including their licenses and certificates, 
professional awards and recognition, educational level, membership in professional 
organizations, and prior employment are open to the public.  Open Records Decision 
Nos. 329 (1982) and 278, 269 (1981) held that in the usual instance, the circumstances of 
an employee's resignation are available to the public.  Open Records Decision Nos. 350 
(1982) and 208 (1978) held that the final determination of a complaint against a police 
officer and letters advising him of disciplinary action taken against him are open to the 
public.

	These statutory provisions and decisions establish that information in a public 
employee's personnel file, including that which relates to his professional background 
and qualifications, to his resignation, or to the termination of his employment, is 
available to the public unless expressly excepted under section 3(a) of the act.  In light of 
the Hubert v. Harte-Hanks case, this information can be withheld under section 3(a)(2) 
only if it is highly intimate or embarrassing and the public has no legitimate interest in it.  
Frequently, the public will have a legitimate interest in information relating to public 
employees; personnel file information, therefore, will generally be available to the public 
regardless of whether it is highly intimate or embarrassing.

	Mr. Wade's letter also stated:

As to your request for information on disciplinary action concerning 
[five named individuals]: [a named individual] has never been 
disciplined by this department.  The investigations concerning [three 
named individuals] are part of this department's internal affairs and 
are not subject to public disclosure.

	Investigative information may be withheld in certain instances, e.g., where its 
release would "unduly interfere" with law enforcement or prosecution within section 
3(a)(8) of the Open Records Act, see, e.g., Open Records Decision No. 434 (1986), or 
where it relates to pending or contemplated litigation within section 3(a)(3) of the act, 
see, e.g., Open Records Decision No. 135 (1976).  Open Records Decision Nos. 434 
(1986) and 287 (1981), however, emphasize that where it is not readily apparent that the 
release of investigative information would unduly interfere with law enforcement or 
prosecution, the governmental body must show how this would likely occur.  Other 
decisions note that section 3(a)(3) is not a blanket exemption for investigative files.  See, 
e.g., Open Records Decision No. 183 (1978).  In this instance, neither you nor Sheriff 
Wade has argued that the release of the information in item number four would unduly 
interfere with law enforcement or prosecution or that this information relates to pending 
or anticipated litigation.  No claim has been advanced, moreover, that any other section 
3(a) exception applies to this information, and as we have often observed, we do not 
consider exceptions not claimed by governmental bodies seeking to withhold 
information.  Open Records Decision Nos. 325, 321 (1982).  Accordingly, unless, within 
five (5) days, you advance compelling reasons for withholding any of the information 
concerning the [three individuals] named in item number four, that information must be 
released.  See Open Records Decision No. 319 (1982) (where ten-day requirement not 
met, governmental body may withhold information only if compelling reasons shown).

	Mr. Wade next stated:

As to your request for information concerning the April 12 shooting 
incident involving [the individual named in item number five]:  This 
is a criminal case that is still pending and is not subject to public 
disclosure.

Neither your office nor Sheriff Wade, however, has informed us of the criminal case to 
which the requested information applies.  Unless we receive that information within five 
(5) days, we will conclude that section 3(a)(3) does not apply.

	Mr. Wade also stated:

As to your request for reasons for Dismissal, Promotions or 
Demotions of Department Employees:  These are inner Department 
Decisions that are not subject to public disclosure.

	Open Records Decision Nos. 329 (1982) and 208 (1978) held that complaints 
against police officers and information concerning disciplinary actions taken with respect 
to them are available to the public.  Open Records Decision Nos. 329 (1982) and 278 
(1981) held that the circumstances of an employee's resignation are usually available to 
the public.  These decisions recognized that the public has a legitimate interest in this 
kind of information concerning public employees.  We believe it is equally obvious that 
the public has a legitimate interest in knowing the reasons for the dismissal, demotion, or 
promotion of a public employee.  Section 3(a)(2), therefore, does not except the 
information from required disclosure.  As you have asserted no other basis for 
withholding this information, this portion of the request must be granted.

	In defense of his claim that the requested information may be withheld, Sheriff 
Wade cited Open Records Decision No. 71 (1975).  At issue there was information 
concerning a former employee's character, work methods, whether he had been suspected 
or convicted of drug-related offenses, and the conditions of the termination of his 
employment.  The decision held that

most of the information . . . is excepted from disclosure by section 
3(a)(2) of the Act.  Specifically, information concerning evaluation 
or investigation of the employee's qualifications and performance is 
not required to be disclosed.  Nor do we think that information 
concerning the circumstances of termination of employment is 
required to be disclosed.

As our previous discussion shows, however, recent decisions have undermined this 
decision.  See, e.g., Open Records Decision Nos. 342, 329 (1982) (information about 
qualifications of public employees available to public); 329 (1982); 278 (1981) 
(circumstances of employee's resignation open to public); 350 (1982); 208 (1978) 
(disciplinary action against public employee available to public).  These decisions have 
pointed out that the test for applying section 3(a)(2) which was devised in Hubert v. 
Harte-Hanks Texas Newspapers, Inc., supra, does not permit information in an 
employee's personnel file to be withheld if the public has a legitimate interest in it.  The 
public has a genuine interest in information concerning a law enforcement employee's 
qualifications and performance, and in the circumstances of his resignation or 
termination.  As we have noted, ensuring that information of this nature would be 
available to the public was a principal reason underlying the enactment of the Open 
Records Act.

	In light of recent decisions and the Harte-Hanks case, Open Records Decision No. 
71 (1975) is no longer viable.  To the extent that its conclusions conflict with those 
announced here, it is overruled.

	Sheriff Wade also defended his policy of withholding much of this information 
by pointing out that Orange County Termination Notice forms contain a notation stating:  
"Personnel records are not opened to the general public.  If employees wishes [sic] copy 
of this termination, please acknowledge receipt below. . . ."  But it has long been settled 
that governmental bodies may not simply agree to keep information confidential.  
Industrial Foundation of the South v. Texas Industrial Accident Board, supra; Open 
Records Decision Nos. 293 (1981); 207 (1978); 133 (1975).  This notation, therefore, has 
no effect on the availability of personnel file information.  On the contrary, as we have 
observed, the right of anyone to obtain information in a personnel file depends entirely 
on whether the governmental employer can show that a section 3(a) exception applies to 
that information.  The notation in question cannot close up information which is not 
within a section 3(a) exception.

	With respect to the jail cards, dispatch cards, and general offense reports of the 
sheriff's department, neither your office nor Sheriff Wade has advanced any argument for 
withholding this information.  On the contrary, the attorney representing Sheriff Wade 
stated, in a letter to this office, that the jail and dispatch cards should be released.  Much 
of the information in the department's offense reports is available to the public under 
Houston Chronicle Publishing Company v. City of Houston, 531 S.W.2d 177 (Tex. Civ. 
App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 
1976), and Open Records Decision Nos. 408 (1984), 216 (1978), and 127 (1976).  Other 
information in these cards and reports can be withheld only if, within five (5) days, 
relevant exceptions authorizing the withholding of this information are cited.  After five 
days, we shall, if we receive no information, conclude that none of the information in 
these cards and reports may be withheld.  This information, moreover, can now be 
withheld only if compelling reasons for doing so are advanced.  See Open Records 
Decision No. 319 (1982).

	Before leaving the subject of the offense reports, we note the Leader’s claim that 
"the Department has frequently removed the names of complainants and suspects, has 
deleted the description of the offense, or has withheld access altogether."  This office 
cannot resolve the factual issue of whether the alleged transgressions have occurred.

	In summary, in the instances noted, either your office or Sheriff Wade has five 
(5) days within which to advance arguments for withholding the information requested 
by the Leader.  After five days, we shall conclude that this information must be 
disclosed.  The remainder of the information must be released immediately.  In this 
context, we note that section 10 of the Open Records Act provides in relevant part:

	(b)	A custodian of public records, or his agent, commits an 
offense if, with criminal negligence, he or his agent fails or refuses 
to give access to, or to permit or provide copying of, public records 
to any person upon request as provided in this Act.

	. . . .

	(e)	Any person who violates Section . . . 10(b) of this Act shall 
be deemed guilty of a misdemeanor and upon conviction shall be 
punished by confinement in the county jail not to exceed six (6) 
months or fined in an amount not to exceed $1,000, or by both such 
fine and confinement.  A violation under this section constitutes 
official misconduct.

Very truly yours,

Jim Mattox
Attorney General of Texas

Jack Hightower
First Assistant Attorney General

Mary Keller
Executive Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Prepared by Jon Bible
Assistant Attorney General