April 12, 2001

Mr. Wiley B. McAfee
Police Legal Advisor
City of Irving
P.O. Box 152288
Irving, Texas 75015-2288

OR2001-1475

Dear Mr. McAfee:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 146025.

The Irving Police Department (the "department") received a written request for the personnel records of a named city police officer. You contend that the contents of the police officer's personnel file held by the department are made confidential under section 143.089(g) of the Local Government Code and therefore must be withheld pursuant to section 552.101 of the Government Code.⁽¹⁾

At the outset, we must address a procedural matter. The department was required to request a decision from this office and state the exceptions that apply no later than the tenth business day after the date the department received the request. Gov't Code § 552.301(b). You state the department received the request on January 22, 2001. The tenth business day after January 22, 2001 was February 5, 2001. Although your request letter to this office is dated February 5, 2001, it was not postmarked until February 6, 2001. See Gov't Code § 552.308. The information available to this office thus indicates the department did not timely comply with section 552.301(b).

If a governmental body fails to request a decision of this office as provided by section 552.301, the requested information "is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information." Gov't Code § 552.302; see also see also Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make a compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code § 552.302); Open Records Decision No. 319 (1982). Normally, a compelling interest sufficient to overcome the section 552.302 presumption of openness is that some other source of law makes the information confidential or that third party interests are at stake. See, e.g., Open Records Decision No. 150 at 2 (1977). Because a demonstration that information is excepted from public disclosure under section 143.089(g) of the Local Government Code provides a compelling reason sufficient to overcome the section 552.302 presumption of openness, we will address the applicability of this exception.

Section 143.089(g) of the Local Government Code provides:

A fire or police department may maintain a personnel file on a fire fighter or police officer employed by the department for the department's use, but the department may not release any information contained in the department file to any agency or person requesting information relating to a fire fighter or police officer. The department shall refer to the director [of civil service] or the director's designee a person or agency that requests information that is maintained in the fire fighter's or police officer's personnel file.

Local Gov't Code § 143.089(g) (emphasis added). The requested personnel records held by the department are confidential pursuant to section 143.089(g) of the Government Code. The department therefore must withhold these records pursuant to section 552.101 of the Government Code.⁽²⁾

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497.

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Karen A. Eckerle
Assistant Attorney General
Open Records Division

KAE/RWP/seg

Ref: ID# 146025

Encl. Submitted documents

cc: Mr. Fred Daugherty
P.O. Box 571550
Dallas, Texas 75357
(w/o enclosures)

Footnotes

1. Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision."

2. We assume the department has complied with the requirement in subsection (g) to refer the requestor to the City of Irving's Civil Service Commission for the records contained in the officer's civil service file. We note that some of the information you submitted to this office pertains to commendations and sustained allegations of misconduct regarding the officer that must be included in the officer's civil service file and thus may be subject to required public disclosure under the Public Information Act. See Loc. Gov't Code § 143.089(a), (f).
 

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