|
Office of the Attorney General - State of Texas John Cornyn |
|
May 6, 2002 Mr. Gary W. Smith
OR2002-2377 Dear Mr. Smith: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 162362. The Baytown Police Department (the "department") received four requests for information regarding the arrest of Luis Torres on January 20, 2002. You state that the videotape of the detention of Mr. Torres and the 911 tapes related to the arrest have been released. The department also received a request for the names of the officers involved in this arrest and any founded and unfounded complaints against these. You state that the identities of the officers involved in this arrest and all founded complaints will be released to the requestor who seeks such information. You claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.103, 552.108, 552.117, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. You claim that the information regarding the arrest of Luis Torres that has not previously been released to the public is excepted under 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 department 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. Univ. of Tex. Law Sch. v. Tex. Legal Found., 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 department 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). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986). In Open Records Decision No. 638 (1996), this office stated that a governmental body has met its burden of showing that litigation is reasonably anticipated when it received a notice of claim letter and the governmental body represents that the notice of claim letter is in compliance with the requirements of the Texas Tort Claims Act, Civ. Prac. & Rem. Code, ch. 101, or an applicable municipal ordinance. You state that, prior to the department's receipt of the present request, the City of Baytown received a notice of claim letter that complies with the requirements of the Texas Tort Claims Act. This letter, a copy of which you have submitted for our review, alleges that the City of Baytown, the department, and three peace officers may be liable for the death of Luis Torres while in the custody of the department. Thus, based on your representation and our review of the submitted claim letter, we conclude that you have shown that litigation was reasonably anticipated on the date the department received the present request for information. Further, the information regarding the arrest of Luis Torres relates to the anticipated litigation. Thus, the department may withhold most of the submitted information regarding the arrest of Luis Torres under section 552.103.(1) As we are able to make this determination, we need not address your remaining claimed exceptions as to this information. 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). 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). Next, we address the exception you claim with respect to the requested information related to unfounded complaints. You argue that such information is excepted under section 552.101 of the Government Code. 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 statute. Section 143.089 of the Local Government Code contemplates two different types of personnel files, one that a city's police department is required to maintain as part of a police officer's civil service file, and one that a city's police department may maintain for its own internal use. See 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 the peace officer. See id. § 143.089(a)(2). However, documents relating to any alleged misconduct or disciplinary action taken must be removed from the civil service file if the department determines that there is insufficient evidence to sustain the charge of misconduct or that the disciplinary action was taken without just cause. See id. § 143.089(b), (c). 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. See City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556 (Tex. App.--San Antonio 2000, pet. denied); City of San Antonio v. Texas Attorney General, 851 S.W.2d 946, 949 (Tex. App.--Austin 1993, writ denied). Thus, subsections (a)-(c) limit the contents of the civil service file. Subsection (g) provides that the police department may 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). 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 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. See City of San Antonio, 851 S.W.2d at 949. You do not specifically indicate that the submitted information regarding unfounded complaints is maintained in the department's internal files pursuant to section 143.089(g). However, you do state that the information relates to unfounded complaints that have not resulted in disciplinary action. Thus, we conclude that the submitted information regarding unfounded complaints is not information required to be maintained in the officers' civil service personnel files, and instead is part of each officer's subsection (g) internal file. Thus, the submitted information regarding unfounded complaints is confidential under section 143.089(g) of the Local Government Code and must be withheld under section 552.101 of the Government Code. To summarize: (1) the department may withhold the submitted information regarding the arrest of Luis Torres under section 552.103; and (2) the department must withhold the submitted information regarding unfounded complaints against peace officers 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 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, Yen-Ha Le
c: Mr. Ted Oberg
Mr. James G. Rodriguez
Mr. Matthew Cook
Ms. Elizabeth Lee
Footnotes 1. Generally, basic information may not be withheld from public disclosure under section 552.103. Open Records Decision No. 597 (1991). Basic information refers to the information held to be public in 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). In addition, basic information is not excepted under section 552.108. Gov't Code § 552.108(c). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |