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Office of the Attorney General - State of Texas John Cornyn |
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August 9, 2001 Ms. Cynthia B. Garcia
OR2001-3470 Dear Ms. Garcia: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 150514. The City of Fort Worth (the "city") received a request for a written transcript of all tape recordings made concerning an investigation by the Fort Worth Fire Department (the "department") of the requestor's complaint against a certain department captain. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information. First, we note that the city has submitted a written summary of the internal affairs investigation referred to in the request. Because we have no indication that this written investigation summary is responsive to the request for transcripts of tape recordings from the investigation, we do not address in this decision the required public disclosure of the summary. Next, you inform us that, as the city does not have a transcript of the requested tape recordings, it has submitted to this office copies of the tape recordings. The Public Information Act does not require a governmental body to create or prepare new information. Open Records Decision Nos. 572 (1990), 342 (1982). Accordingly, the city is not required to create a transcript of the submitted tape recordings. Because the city has, in good faith, related the request to the information it holds, we agree that the submitted recordings are responsive to the request for transcripts. See Open Records Decision No. 561 at 8 (1990). We therefore address the responsive recordings. Section 552.101 excepts from disclosure "information considered to be 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 contemplates two different types of personnel files for city police officers and fire fighters: one that the civil service director or designee is required to maintain as part of the fire fighter's civil service file, and one that the city's police or fire department may maintain for its own internal use. Local Gov't Code § 143.089(a), (g). In cases in which a fire department takes disciplinary action against a fire fighter under chapter 143, it is required by section 143.089(a)(2) to place "any letter, memorandum, or document relating to" the investigation and disciplinary action in the fire fighter'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 the release provisions of 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). Subsection (g) authorizes but does not require the city fire department to maintain for its use a separate and independent, internal personnel file on a fire fighter. 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. Information in a personnel file maintained by a fire or police 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 or police officer's employment relationship with the fire or police department. See City of San Antonio v. San Antonio Express-News, 47 S.W.3rd 556 (Tex. App. -- San Antonio 2000, no pet. h.); Open Records Decision 562 at 6 (1990). Regarding the tape recordings at issue, you inform us that "the information must be maintained by the department according to the requirements in section 143.089(g) of the Texas Local Government Code." We thus understand you to represent that the tape recordings are maintained in an internal personnel file of the department under section 143.089(g). After reviewing the submitted tape recordings, we conclude that they are reasonably related to the department captain's employment relationship with the city. Accordingly, we conclude that the submitted tape recordings maintained in the department's internal file under subsection (g) must be withheld from disclosure under section 552.101. 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. Steve Bohl
c: Ms. Denise Jones
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |