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Office of the Attorney General - State of Texas John Cornyn |
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July 5, 2001 Ms. Karen C. Gladney
OR2001-2888 Dear Ms. Gladney: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 149157. The City of Austin (the "city") received a request for any and all records concerning the requestor's grievance filed with the Austin Fire Department (the "department"). You have identified the responsive information as being an internal affairs investigation file and investigative materials pertaining to that investigation, and you have submitted a representative sample of the information.(1) You claim that the requested information is excepted from disclosure under sections 552.101 and 552.103 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Section 552.101 excepts from disclosure "information deemed confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. We understand that the city is a civil service city under chapter 143 of the Local Government Code. Section 143.089 of the Local Government Code contemplates two different types of personnel files, one that the department is required to maintain as part of the fire fighter's civil service file, and one that the department may maintain for its own internal use. Local Gov't Code § 143.089(a), (g). The civil service file must contain certain specified items, including documents relating to any misconduct in those cases where the department took disciplinary action against a fire fighter. Id. § 143.089(a)(2). Chapter 143 prescribes the following types of disciplinary actions: removal, suspension, demotion, and uncompensated duty. See Id. §§ 143.051-.055. Such records are subject to release under chapter 552 of the Government Code. See Id. § 143.089(f); Open Records Decision No. 562 at 6 (1990). However, a document relating to a fire fighter's alleged misconduct may not be placed in his civil service personnel file if there is insufficient evidence to sustain the charge of misconduct. Local Gov't Code § 143.089(b). In addition, a written reprimand must be placed in the confidential departmental file and not in the public civil service file. Attorney General Opinion JC-0257 at 1 (2000). Thus, subsections (a)-(c) limit the contents of the civil service file. Id. at 7 (subsection (a) contains an exclusive list of the documents that must be retained in the civil service director's personnel file). Subsection (g) authorizes but does not require the city police department to maintain for its use a separate and independent, internal personnel file on a peace officer. Section 143.089(g) 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 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). Information in a personnel file maintained by a fire department pursuant to subsection (g) is excepted from disclosure under section 552.101 of the Government Code if the information is reasonably related to the fire fighter's employment relationship with the fire or police department. See City of San Antonio v. San Antonio Express-News, No.04-99-00848-CV, 2000 WL 1918877 (Tex. App. -- San Antonio, Dec. 20, 2000, no pet. h.) (information reasonably relating to officer's employment relationship with department and maintained in the department's internal file pursuant to section 143.098(g) is confidential). Open Records Decision 562 at 6 (1990). You state that the city maintains the information at issue in the police department's internal file pursuant to section 143.089(g). We note that the information at issue concerns an investigation pertaining to a grievance filed by the requestor involving his allegations of discrimination and harassment by other employees of the department which were not sustained. After inspecting the submitted information, we conclude that it is reasonably related to the fire fighters' employment relationship with the city and must be withheld under section 552.101 of the Government Code in conjunction with section 143.089(g) of the Local Government Code. Because section 552.101 is dispositive in this case, we do not address your claim under section 552.103. 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, J. Steven Bohl
c: Mr. Eddie Perez
Footnotes 1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |