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Office of the Attorney General - State of Texas John Cornyn |
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May 7, 2002 Mr. Brad Norton
OR2002-2412 Dear Mr. Norton: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 162482. The City of Austin (the "city") received a request for fourteen categories of information relating to a named police officer and Austin Police Department procedures. You state that the requestor has withdrawn item 3 of his request. Furthermore, you state that the city does not possess information responsive to items 9, 10, 11, and 14 of the request. We note that the Public Information Act does not require a governmental body to disclose information that did not exist at the time the request was received. Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986). You state that the requestor modified item 8 of his request and that the city has released the information responsive to that item. You also state that the city has sought a clarification from the requestor regarding items 7 and 13 of the request; however, the city has yet to receive a response from the requestor. Because the requestor has not responded to the request for a clarification, the city need not respond to items 7 and 13 of the request until it receives the requestor's response. Should the requestor submit such a response, the city must seek a ruling from this office before withholding any responsive information from the requestor. See Open Records Decision No. 663 (1999) (providing for tolling of ten business day time limit to request attorney general decision while governmental body awaits clarification). Finally, with respect to the information responsive to items 1, 2, 4, 5, 6, and 12 of the request, you claim that the requested information is excepted from disclosure under sections 552.101 and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. 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, such as section 143.089(g) of the Local Government Code. Section 143.089 of the Local Government Code provides in pertinent part: (a) The director [of the fire fighters' or police officers' civil service] or the director's designee shall maintain a personnel file on each fire fighter and police officer. The personnel file must contain any letter, memorandum, or document relating to: (1) a commendation, congratulation, or honor bestowed on the fire fighter or police officer by a member of the public or by the employing department for an action, duty, or activity that relates to the person's official duties; . . . . (g) 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. Thus, section 143.089 of the Local Government Code provides for the creation of two personnel files for police officers and fire fighters: one that must be maintained by the city's civil service director or his designee and another that may be maintained by the city's fire and police departments. Information contained in personnel files maintained by the civil service director in accordance with chapter 143, including all records relating to commendations, congratulations, or honors bestowed on a police officer by a member of the public or by the employing department for an action, duty, or activity that relates to the person's official duties, must be released to the public unless the information comes within one of the Public Information Act's exceptions to required public disclosure. However, information contained in a personnel file held by the police department is confidential pursuant to section 143.089(g) and may not be disclosed under the Act. You argue that the information responsive to items 1, 2, 4, 5, 6, and 12 is confidential under section 143.089(g) of the Local Government Code. We understand you to assert that the submitted information is held in the Austin police department's personnel file on the police officer at issue. Based on your argument, we agree that most of the submitted information is confidential under section 143.089(g). However, some of the submitted information consists of periodic evaluations of a named officer as well as information relating to commendations, congratulations, and honors bestowed on 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 §§ 143.052, .089(a)(2), (3). Therefore, although the evaluations and the information relating to the commendations, congratulations, and honors in the police department's personnel file are confidential under section 143.089(g), the evaluations and the information relating to the commendations, congratulations, and honors in the civil service personnel file are not confidential under that provision. Id. § 143.089(a), (g). Nevertheless, portions of the information that must be kept in the civil service file are confidential under common-law privacy. Section 552.101 of the Government Code encompasses the doctrines of common law and constitutional privacy. Common-law privacy protects information if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. We have marked the information that must be withheld under common-law privacy and section 552.101. Next, we address your argument under section 552.117 of the Government Code with respect to the information that must be kept in the civil service commission's personnel file. Section 552.117 provides, in relevant part: Information is excepted from [required disclosure] if it is information that relates to the home address, home telephone number, or social security number of the following person or that reveals whether the person has family members: . . . (2) a peace officer as defined by Article 2.12, Code of Criminal Procedure, or a security officer commissioned under Section 51.212, Education Code, regardless of whether the officer complies with Section 552.024 or 552.1175, as applicable . . . . The portions of the submitted information that must be kept in the civil service commission personnel file do not contain the home address, home telephone number, social security number, or family member information of a peace officer or any other public employee. Thus, none of this information may be withheld under section 552.117. In summary, the city must withhold the submitted information from the police department's personnel file under section 552.101 of the Government Code in conjunction with section 143.089(g) of the Local Government Code. However, the evaluations and the information relating to the commendations, congratulations, and honors that we have marked must also be maintained in the civil service personnel file and cannot be withheld from that file under section 143.089(g). The commendations, congratulations, honors, and evaluations must be released from the city's civil service personnel file, with the exception of information that is confidential under common-law privacy. 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); Tex. Dep't of Pub. 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, Nathan E. Bowden
c: Mr. Travis Williamson
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |