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Office of the Attorney General - State of Texas John Cornyn |
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April 16, 2002 Mr. Nghiem V. Doan
OR2002-1914 Dear Mr. Doan: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 161390. The City of Pearland Police Department (the "department") received a request for seven categories of information related to a named police officer. You state that information responsive to categories 1, 3, and 4 of the request have been released to the requestor. You inform us that the department has no information that is responsive to categories 5, 6, and 7. Chapter 552 of the Government Code does not require a governmental body to release information that did not exist when a request for information was received or to prepare new information. See Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266, 267-68 (Tex. Civ. App. - San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 452 at 3 (1986), 362 at 2 (1983). You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code in conjunction with section 143.089 of the Local Government Code. We have considered the exception you claim and reviewed the submitted information. We first note that some of the records at issue are podiatric records, access to which is governed by chapter 202 of the Occupations Code. Section 202.402 of the Occupations Code provides: (b) Records of the identity, diagnosis, evaluation, or treatment of a patient by a podiatrist that is created or maintained by a podiatrist are confidential and privileged and may not be disclosed except as provided by this subchapter. (c) A person who receives information from confidential communications or podiatric records, other than a person listed under Section 202.405 or 202.406 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. The podiatric records must be released upon the patient's signed, written consent, provided that the consent specifies (1) the information to be covered by the release, (2) reasons or purposes for the release, and (3) the person to whom the information is to be released. Occ. Code §§ 202.405, 406. Section 202.402(c) also requires that any subsequent release of podiatric records be consistent with the purposes for which the governmental body obtained the records. Cf. Open Records Decision No. 565 at 7 (1990) (release of medical records must be consistent with purposes for which governmental body obtained the records). Podiatric records may be released only as provided under the Occupations Code. Cf. Open Records Decision No. 598 (1991) (release of medical records regulated by Medical Practice Act). We have marked the documents which are podiatric records subject to the Occupations Code. 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 of Pearland 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 police department is required to maintain as part of the police officer's civil service file, and one that the police department may maintain for its own internal use. Local Gov't Code § 143.089(a), (g). 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. In City of San Antonio v. Texas Attorney General, 851 S.W.2d 946 (Tex. App.--Austin 1993, writ denied), the court addressed a request for information contained in a police officer's personnel file maintained by the city police department for its use and addressed the applicability of section 143.089(g) to that file. The records included in the personnel file related to complaints against the police officer for which no disciplinary action was taken. The court determined that section 143.089(g) made these records confidential. City of San Antonio, 851 S.W.2d at 949. 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 personnel files maintained under section 143.089(a). Such records may not be withheld under section 552.101 of the act. Local Gov't Code § 143.089(f); Open Records Decision No. 562 (1990) at 6. We are unable to determine whether the documents you submitted to us for review are part of the files maintained by the police department under section 143.089(g). If these documents are part of the section 143.089(g) files, the department must withhold these documents. If the documents are placed in the personnel files maintained by the civil service commission under section 143.089(a), then the documents must generally be released to the public upon request, unless some provision of chapter 552 of the Government Code permits the civil service commission to withhold the information. Local Gov't Code § 143.089(f); Gov't Code §§ 552.006, .021; Open Records Decision No. 562 (1990) at 6 (construction of Local Gov't Code § 143.089(f) provision requiring release of information as required by law). However, we note that some of the submitted information consists of periodic evaluations and commendations of the named officer. While this information, which we have marked, may be kept in the police department's personnel file, it must also be kept in the civil service personnel file. Local Gov't Code § 143.089(a)(1), (3). Therefore, although the evaluations and commendations maintained in the police department's internal personnel file are confidential under section 143.089(g), the evaluations and commendations in the civil service personnel file are not confidential under that provision. It is not clear from the submitted information that you referred the requestor to the director or the director's designee. Please note that you are required to make such a referral when a request is made to you for information which is maintained in the police officer's personnel file. 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 Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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. Christopher L. Ashby
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |