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Office of the Attorney General - State of Texas John Cornyn |
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July 19, 2001 Mr. Wiley B. McAfee
OR2001-3140 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# 149632. The Irving Police Department and the City of Irving (the "city") received a request for eleven categories of documents relating to the sexual assault of a named individual. You claim that the requested information is excepted from disclosure under sections 552.101, 552.103, 552.108, 552.111, and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.(1) Although you indicate that you have provided this office with representative samples of documents responsive to item 10, no such documents were received. Because you have not submitted the information, we have no basis for finding it confidential. Thus, we have no choice but to order the information referred to in item 10 released per section 552.302. If you believe the information is confidential and may not lawfully be released, you must challenge the ruling in court as outlined below. You inform us that items 6, 7, and 8 have been the subjects of previous requests under the Public Information Act. To the extent that any of the submitted information has previously been released to the public, with the exception of the front page offense information previously provided to the victim's mother, it may not now be withheld. Gov't Code §552.007(b). Items 1, 2, 3, and 4, you advise, contain records pertaining to the investigation of an aggravated sexual assault of a sixteen year-old child. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 261.201(a) of the Family Code provides as follows: (a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency: (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. Because the requested records relate to an allegation of child abuse, the documents are within the scope of section 261.201 of the Family Code. You have not indicated that the city has adopted a rule that governs the release of this type of information. Therefore, we assume that no such regulation exists. Given that assumption, the records labeled as items 1, 2, 3, and 4, including photographs and any front page information previously provided to the victim's mother, are confidential pursuant to section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (predecessor statute). Accordingly, the city must withhold these records from disclosure under section 552.101 of the Government Code as information made confidential by law.(2) Furthermore, because section 261.201(a) protects all "files, reports, communications, and working papers" related to an investigation of child abuse, the city must not release front page offense report information in cases of alleged child abuse. Section 552.101 of the Government Code excepts from disclosure information deemed confidential by statute, such as section 143.089 of the Local Government Code. Section 143.089 contemplates two different types of personnel files, a police officer's civil service file that the police department is required to maintain, and an internal file that the police department may maintain for its own use. Local Gov't Code § 143.089(a), (g). In cases in which a police department takes disciplinary action against a police officer, it is required by section 143.089(a)(2) to place records relating to the investigation and disciplinary action in the officer's civil service file maintained under section 143.089(a). 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 an officer'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). Information that reasonably relates to an officer's employment relationship with the police department and that is maintained in a police department's internal file pursuant to section 143.089(g) is confidential and must not be released. 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.); City of San Antonio v. Texas Attorney General, 851 S.W.2d 946, 949 (Tex. App.--Austin 1993, writ denied). You have submitted to this office what you assert is information from the officers' internal 143.089(g) files, as well as information that is contained in the officers' files held by the civil service commission. Upon review of the information contained in the 143.089(g) files, we conclude that the requested personnel records held by the city are confidential under section 143.089(g) of the Local Government Code. The city must therefore withhold these records pursuant to section 552.101 of the Government Code.(3) However, the submitted information that you have identified as being contained within the civil service commission files of the officers is information governed by section 143.089(a) of the Local Government Code. Therefore, this information may not be withheld under section 552.101 of the Government Code. You also argue that the records in item 9 relate to the pending investigation of possible criminal conduct by officers Bollin and Webb, and that the information is therefore excepted from disclosure under section 552.108. Section 552.108(a) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if: (1) release of the information would interfere with the detection, investigation, or prosecution of crime." Generally, a governmental body claiming section 552.108 must reasonably explain, if the information does not supply the explanation on its face, how and why the release of the requested information would interfere with law enforcement. See Gov't Code §§ 552.108(a)(1), (b)(1), .301(e)(1)(a); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). Based upon your representations and our examination of the submitted records, we conclude that the release of the information relating to officers Bollin and Webb which is marked as item 9 would interfere with the detection, investigation, or prosecution of crime.(4) See Houston Chronicle Publ'g Co. 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) (court delineates law enforcement interests that are present in active cases). We note, however, that information normally found on the front page of an offense report is generally considered public. See generally Gov't Code § 552.108(c); Houston Chronicle Publ'g Co. 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); Open Records Decision No. 127 (1976). Thus, you must release from item 9 the type of information that is considered to be front page offense report information, even if this information is not actually located on the front page of an offense report. You next claim that the requested information is excepted from disclosure pursuant to section 552.103 of the Government Code. Section 552.103 provides as follows: (a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. . . . . (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. The city has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Texas Law School v. Texas Legal Foundation, 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). The city must meet both prongs of this test for information to be excepted under 552.103(a). To establish that litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party.(5) Open Records Decision No. 555 (1990); see Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). On the other hand, this office has determined that if an individual publicly threatens to bring suit against a governmental body, but does not actually take objective steps toward filing suit, litigation is not reasonably anticipated. See Open Records Decision No. 331 (1982). Further, the fact that a potential opposing party has hired an attorney who makes a request for information does not establish that litigation is reasonably anticipated. Open Records Decision No. 361 (1983). Section 552.103(a) was intended to prevent the use of the Public Information Act as a method of avoiding the rules of discovery in litigation.(6) Attorney General Opinion JM-1048 at 4 (1989). The litigation exception enables a governmental body to protect its position in litigation by requiring information related to the litigation to be obtained through discovery. Open Records Decision No. 551 at 3 (1990). Although section 552.103(a) gives the attorney for a governmental body discretion to determine whether section 552.103(a) should be claimed, that determination is subject to review by the attorney general. Open Records Decision Nos. 551 at 5 (1990), 511 at 3 (1988). You inform us that the requestor has filed a Notice of Claim against the city that complies with the notice requirements of the Texas Tort Claims Act, Civil Practice and Remedies Code chapter 101. We find that litigation was reasonably anticipated prior to the city's receipt of the present request. Open Records Decision 638 at 4 (1996). We now examine whether the requested information is related to the anticipated litigation. "Ordinarily, the words 'related to' mean 'pertaining to,' 'associated with' or 'connected with.'" University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 483 (Tex. App.--Austin 1997, no pet.). You have identified the issues in the anticipated litigation and explained how the information relates to those issues. See Open Records Decision 551 at 5 (1990). Based upon your representations and our review of the submitted records, we find that the requested information is related to the anticipated litigation, and may be withheld pursuant to section 552.103. Generally, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). Thus, information that has either been obtained from or provided to the opposing party in the anticipated litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). Because section 552.103 is dispositive, we need not address the applicability of your other claimed exceptions. In summary, you must withhold the records in items 1, 2, 3, and 4 under section 552.101 in conjunction with section 261.201(a) of the Family Code. The information in the section 143.089(g) files is confidential by law and must not be released. The civil service files maintained pursuant to section 143.089(a) may not be withheld pursuant to section 552.101. To the extent that any of the records in items 6, 7, or 8 has previously been released to the public, with the exception of front page information previously released to the victim's mother, it may not now be withheld. The release of the information relating to officers Bollin and Webb which is marked as item 9 would interfere with the detection, investigation, or prosecution of crime, and is excepted from disclosure under section 552.108(a). Because you failed to submit the information responsive to item 10, it must be released per section 552.302. The remaining information may be withheld 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, Cindy Nettles
c: Mr. E. Michael Grossman
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. 2. We note, however, that if the Texas Department of Regulatory Services has created a file on this alleged abuse, the child's parent(s) may have the statutory right to review that file. See Fam. Code § 261.201(g). 3. 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 in the personnel files pertains to information regarding an 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 unless otherwise excepted. See Loc. Gov't Code § 143.089(a), (f). We recognize that the department might maintain duplicate information in both the department and civil service files. 4. You inform us that some of the requested information pertaining to Officer Bollin was the subject of a previous ruling by this office. To the extent that the elements of law, fact, and circumstances have not changed from those elements existing when the prior ruling was issued, you may rely on the previous ruling regarding that information. Open Records Decision No. 673 (2001). 5. In addition, this office has concluded that litigation was reasonably anticipated when the potential opposing party took the following objective steps toward litigation: filed a complaint with the Equal Employment Opportunity Commission, see Open Records Decision No. 336 (1982); hired an attorney who made a demand for disputed payments and threatened to sue if the payments were not made promptly, see Open Records Decision No. 346 (1982); and threatened to sue on several occasions and hired an attorney, see Open Records Decision No. 288 (1981). 6. The Public Information Act is not a substitute for the discovery process under the Texas Rules of Civil Procedure. See Attorney General Opinion JM-1048 at 3 (1989) ("the fundamental purposes of the Public Information Act and of civil discovery provisions differ"); Open Records Decision No. 551 (1990) at 3-4 (discussion of relation of Public Information Act to discovery process). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |