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Office of the Attorney General - State of Texas John Cornyn |
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November 15, 2002 Ms. Mia Settle-Vinson
OR2002-6523 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# 172260. The Civil Service Commission of the City of Houston (the "city") received a request for Houston Police Department (the "department") Captain Mark Aguirre's personnel file. You state that you have released most of the requested information. You claim that the remaining 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. Section 552.101 of the Government Code excepts from disclosure information deemed confidential by statute, such as 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 civil service director 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 under chapter 143, 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. filed); City of San Antonio v. Texas Attorney General, 851 S.W.2d 946, 949 (Tex. App.--Austin 1993, writ denied). On the other hand, information contained in personnel files maintained by the civil service director in accordance with chapter 143, including commendations, congratulations, and honors given to a police officer by the public or the police department as well as periodic evaluations of the police officer by a supervisor and letters, memoranda, or documents from the employing department detailing misconduct that resulted in disciplinary action by the employing department in accordance with chapter 143 must be released to the public unless the information comes within one of the Public Information Act's (the "Act") exceptions to required public disclosure. You explain that the submitted information contains documents relating to disciplinary actions taken against Officer Aguirre and to arbitration proceedings where these disciplinary actions were later overturned. The submitted information also contains information pertaining to investigations into allegations of misconduct that did not result in disciplinary action contemplated by chapter 143. See Local Gov't Code §§ 143.051-.055 (prescribing the following types of disciplinary actions: removal, suspension, demotion, and uncompensated duty). Upon consideration of your arguments and after review of the submitted information, we find that the information we have marked that relates to disciplinary action taken against Officer Aguirre that was overturned is confidential pursuant to section 143.089(g). We also find that the information that relates to investigations into allegations of misconduct that did not result in disciplinary action as contemplated by chapter 143 is confidential pursuant to section 143.089(g). You must therefore withhold the information we have marked, which must be maintained in the department's internal file, pursuant to section 552.101. The submitted information, however, also contains information relating to investigations into sustained allegations of misconduct that resulted in Officer Aguirre's suspension. We note that suspension is a disciplinary action under chapter 143. See Local Gov't Code § 143.056; Attorney General Opinion JC-0257 (2000). Accordingly, the information we have marked relating to sustained allegations of misconduct against Officer Aguirre that resulted in his suspension must be maintained in the civil service director's file pursuant to section 143.089(a)(2). You also claim that the responsive information is excepted from release pursuant to section 552.101 in conjunction with section 143.1214 of the Local Government Code. Chapter 143 of the Local Government Code encompasses civil service rules for municipal fire and police departments. Subchapter G of chapter 143 is applicable to a municipality with a population of 1.5 million or more, including the City of Houston. Subchapter G includes section 143.1214 of the Local Government Code, which provides in relevant part: (b) The department shall maintain . . . any document in the possession of the department that relates to a charge of misconduct against a firefighter or police officer . . . that the department did not sustain, only in a file created by the department for the department's use. The department may not release those documents to any agency or other person except another law enforcement agency or fire department. Local Gov't Code § 143.1214(b). Section 143.089(c) of the Local Government Code provides that: The department head or the department head's designee may forward a document that relates to disciplinary action against a fire fighter or police officer to the director or the director's designee for inclusion in the fire fighter's or police officer's personnel file maintained under Sections 143.089(a)-(f) only if: (1) disciplinary action was actually taken against the fire fighter or police officer; (2) the document actually shows the disciplinary action taken (3) the document includes at least a brief summary of the facts on which the disciplinary action was based. Local Gov't Code § 143.1214(c). As previously discussed, the submitted information contains documents relating to sustained allegations of misconduct that resulted in Officer Aguirre's suspension, a disciplinary action prescribed by Chapter 143. Accordingly, the information relating to sustained allegations of misconduct that resulted in Officer Aguirre's suspension is not made confidential by section 143.1214(b) since that section only applies to information relating to unsustained charges of misconduct. Furthermore, as the conditions established by section 143.1214(c) have been met with regard to the information relating to sustained allegations of misconduct resulting in Officer Aguirre's suspension, we find that you may not withhold the information relating to sustained allegations of misconduct resulting in Officer Aguirre's suspension under section 552.101 in conjunction with section 143.1214. As stated above, information maintained in the civil service director's file is subject to release under the Act. You have made no arguments against release of the information which must be maintained in the civil service director's file. However, even though you have raised no exceptions to release, we must consider whether any of the submitted information that must be maintained in the civil service director's file pursuant to section 143.089(a) is excepted from required public disclosure pursuant to mandatory exceptions to release.(1) Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." The common-law right of privacy is incorporated into the Public Information Act by section 552.101. For information to be protected by common-law privacy it must meet the criteria set out in Industrial Foundation v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The Industrial Foundation court stated that information is excepted from disclosure if (1) the information contains highly intimate or embarrassing facts the release of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. 540 S.W.2d at 685. In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court addressed the applicability of the common-law privacy doctrine to files of an investigation of allegations of sexual harassment. The Ellen court held that the identities of victims and witnesses of sexual harassment must be withheld pursuant to common-law privacy. Id. at 525. Pursuant to Ellen, the city must withhold the identities of the victim of, and the witness to, alleged sexual harassment under common-law privacy. We have marked the information that must be withheld pursuant to section 552.101. As section 552.117 of the of the Government Code is also a mandatory exception to release, we will now address the applicability of that section to the information that must be included in the civil service director's file. Section 552.117(2) requires the city to withhold the following categories of information pertaining to a peace officer, as defined by article 2.12 of the Code of Criminal Procedure: the officer's current and former home address and home telephone number, social security number, and information revealing whether the officer has family members. Open Records Decision No. 622 (1994). The submitted information that must be included in the civil service director's file includes the home address and social security number of a peace officer. Accordingly, we have marked this information, which must be withheld under section 552.117(2). Since section 552.136 is a mandatory exception, we also address the applicability of section 552.136 of the Government Code to the information that must be included in the civil service director's file. Section 552.136 of the Government Code states that "[n]otwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Gov't Code § 552.136. The city must, therefore, withhold any credit card number under section 552.136. Finally, we note that the submitted information that also must be maintained in the civil service director's file contains a social security number which may be excepted from release pursuant to section 552.101 in conjunction with the federal Social Security Act. A social security number or "related record" may be excepted from disclosure under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act. 42 U.S.C. § 405(c)(2)(C)(viii)(I). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. We have no basis for concluding that the social security number included with the submitted information that must be maintained in the civil service director's file is confidential under section 405(c)(2)(C)(viii)(I), and therefore excepted from public disclosure under section 552.101 on the basis of that federal provision. We caution, however, that section 552.352 of the Public Information Act imposes criminal penalties for the release of confidential information. Prior to releasing the relevant social security number, you should ensure that it was not obtained or is not maintained by the city pursuant to any provision of law, enacted on or after October 1, 1990. In summary, you must withhold the information we have marked pursuant to section 143.089(g). You must include the information pertaining to Officer Aguirre's sustained suspensions in the civil service director's section 143.089(a) file. Of that information, you must withhold the identities of the witness and victim of sexual harassment pursuant to section 552.101 in conjunction with common-law privacy and Ellen. You must withhold the marked home address and social security number of a peace officer pursuant to section 552.117(2). You must withhold any credit card number pursuant to section 552.136. Finally, you must withhold the included social security number under the federal Social Security Act if that number was obtained or is maintained by the city pursuant to any provision of law, enacted on or after October 1, 1990. You must release the remaining information, which we have marked, that must be included in the civil service director's 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, Maverick F. Fisher
c: Ms. Roma Khanna
Footnotes 1. The Office of the Attorney General will raise mandatory exceptions including section 552.101 on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |