May 21, 2002

Ms. Mia Settle-Vinson
Assistant City Attorney
City of Houston - Legal Department
P.O. Box 1562
Houston, Texas 77251-1562

OR2002-2714

Dear Ms. Settle-Vinson:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 163218.

The City of Houston (the "city") received two requests for the videotape of the incident involving officer J.L. Gutierrez, Jr. and Jack Stuart on February 9, 2002. One of the requestors also seeks police reports, dispatch tapes, and 911 tapes of the incident, as well as Gutierrez's performance records, including his crisis intervention team training if any, and records regarding any stops, arrests or holds of Stuart held by the Houston Police Department (the "department"). You state that this office has issued previous rulings concerning release of the videotape at issue as well as Incident Report Number 018468002E. You claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.108, and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We have also considered the comments submitted to this office by one of the requestors. See Gov't Code § 552.304.

First, with regard to the two requests for the videotape, we note that in OR2002-1447 (2002) this office previously ruled on the availability of this information under the Public Information Act. As you inform us that the circumstances upon which the earlier ruling was based have not changed, we therefore conclude that you must rely on that ruling as a previous determination and withhold the requested videotape in accordance with OR2002-1447 (2002).⁽¹⁾ See Open Records Decision No. 673 (2001) (so long as law, facts, the circumstances on which prior ruling was based have not changed, the first type of previous determination exists where requested information is precisely the same information as was addressed in a prior attorney general ruling, the ruling is addressed to the same governmental body, and the ruling concludes that the information is or is not excepted from disclosure). Similarly, in OR2002-1440 (2002), this office ruled upon the availability of incident report number 018468002E. As you inform us that the circumstances upon which that earlier ruling was based have not changed, you must withhold portions of incident report number 018468002E in accordance with OR2002-1440 (2002). Id.

We will next address your arguments for withholding the remaining submitted information.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 excepts from disclosure information deemed confidential by statute. We note that the information submitted as Exhibit 4 contains a custodial death report. In Open Records Decision No. 521 at 5 (1989), this office concluded that under article 49.18(b) of the Code of Criminal Procedure, in conjunction with a directive issued by the attorney general, section one of a custodial death report filed with this office is public information, but sections two through five of the report are confidential. See Code Crim. Proc. art. 49.18(b) (attorney general shall make report, with exception of any portion of report that attorney general determines is privileged, available to any interested person). Accordingly, the city must release section one of the submitted custodial death report to the requestor. However, because sections two through five of the report are deemed confidential under article 49.18(b), the city must not release the remaining portions of this report to the requestor.

You argue that the requested information is confidential under section 143.089 of the Local Government Code. 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, 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, 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).

You state that the information submitted as Exhibit 4 relates to an investigation conducted by the Internal Affairs Division of the department. You inform us that this investigation is open and active, and that it is maintained in accordance with section 149.089 of the Local Government Code. We thus understand you to claim that information relating to the investigation is maintained in the department's internal file. Based on your representations, we conclude that the submitted information that relates to the internal affairs investigation and the police officer's employment relationship is confidential under section 143.089(g) of the Local Government Code. The information that is confidential under section 143.089(g) must be withheld from disclosure under section 552.101 of the Government Code.

We note, however, that the information submitted as Exhibit 4 does not relate solely to an internal affairs investigation, in that the police department also conducted a criminal investigation of the incident. Confidentiality under section 143.089(g) may not be engrafted onto information that is created for other law enforcement purposes and does not relate solely to the officer's employment relationship. See City of San Antonio v. San Antonio Express-News, 47 S.W.3d at 564-65. Therefore, to the extent that the submitted information relates to the criminal investigation, we address the city's claim that this information is excepted from disclosure under section 552.108 of the Government Code.

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). You state that the submitted information relates to an open and active criminal investigation. Based upon this representation, we conclude that the release of the information in Exhibit 4 relating to the criminal investigation, including the submitted audio tapes, photographs, and remaining videotape, would interfere with the detection, investigation, or prosecution of crime. 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 the types of information that are considered to be front page offense report information, even if this information is not actually located on the front page of the offense report. The city may withhold the rest of the information that relates to the criminal investigation under section 552.108(a)(1).

In summary, the city may rely on OR2002-1440 (2002) and OR2002-1447 (2002) as previous determinations and withhold the information at issue in those rulings in accordance therewith. The submitted information in Exhibit 4 that pertains to the internal affairs investigation is confidential under section 143.089(g) of the Local Government Code. The city must withhold that information under section 552.101 of the Government Code. The submitted information in Exhibit 4 that relates to the criminal investigation, including the submitted audio tapes, photographs, and remaining videotape, is excepted from disclosure under section 552.108(a)(1) of the Government Code. The city must release basic information, however, under section 552.108(c). The city must release section one of the submitted custodial death report to the requestor, but must withhold sections two through five of the report under article 49.18(b) of the Code of Criminal Procedure. In light of this conclusion, we need not address your argument under section 552.130.

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,

Michael A. Pearle
Assistant Attorney General
Open Records Division
MAP/seg
Ref: ID# 163218
Enc. Submitted documents

c: Mr. Dale Lezon
Houston Chronicle
801 Texas Avenue
Houston, Texas 77002
(w/o enclosures)

Ms. Marilyn Head
President
Corpus Justice
P.O. Box 38906
Houston, Texas 77238
(w/o enclosures)

Footnotes

1. We note that the city has submitted two videotapes to this office for review, one from the security camera at the liquor store where the incident at issue occurred, and one of the crime scene after the shooting. The city may withhold only the videotape from the security camera pursuant to OR2002-1440 (2002).
 

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer