 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 5, 2004 Ms. Traci S. Briggs
OR2004-0030 Dear Ms. Briggs: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 193724. The City of Killeen (the "city") received a request for the complete personnel files of two named city police department officers. You claim that the requested information is excepted from disclosure under sections 552.101, 552.117, 552.130, and 552.136 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, you state that a portion of the requested information is the same information that was the subject of two previous rulings from this office. In Open Records Letter Nos. 2003-5460 (2003) and 2003-5685 (2003), we concluded that the Killeen Police Department could withhold the information submitted in those instances under section 552.101 of the Government Code in conjunction with section 143.089(g) of the Local Government Code. Therefore, assuming that the four criteria for a "previous determination" established by this office in Open Records Decision No. 673 (2001) have been met, we conclude that the city must rely on our decisions in Open Records Letter Nos. 2003-5460 (2003) and 2003-5685 (2003) with respect to the information requested in this instance that was previously ruled upon in those decisions.(1) See Gov't Code § 552.301(f); Open Records Decision No. 673 (2001). To the extent that the information requested in this instance was not the subject of those prior rulings, we will address your arguments. 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. You state that the city 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 civil service director 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 investigates a police officer's misconduct and takes disciplinary action against an officer, it is required by section 143.089(a)(2) to place all investigatory records relating to the investigation and disciplinary action, including background documents such as complaints, witness statements, and documents of like nature from individuals who were not in a supervisory capacity, in the police officer's civil service file maintained under section 143.089(a). Abbott v. City of Corpus Christi, 109 S.W.3d 113, 122 (Tex. App.-Austin 2003, no pet.). All investigatory materials in a case resulting in disciplinary action are "from the employing department" when they are held by or in possession of the police department because of its investigation into a police officer's misconduct, and the police department must forward them to the civil service commission for placement in the civil service personnel file. Id. Such records may not be withheld under section 552.101 of the Public Information Act (the "Act"). Local Gov't Code § 143.089(f); Open Records Decision No. 562 at 6 (1990). You state that the information submitted as Attachment E is maintained in the police department's "confidential file" pursuant to section 143.089(g). Thus, we conclude that this information is confidential pursuant to section 143.089(g) of the Local Government Code and must be withheld under section 552.101 of the Government Code.(2) We now turn to your arguments for Attachment F. Section 552.101 of the Government Code also encompasses common-law privacy. Information must be withheld from disclosure under the common-law right to privacy when it (1) contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). 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. See id. at 683. This office has also found that the following types of information are excepted from required public disclosure under common-law privacy: some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job- related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps); personal financial information not relating to the financial transaction between an individual and a governmental body, see Open Records Decision Nos. 545 (1990), 523 (1989) (individual's mortgage payments, assets, bills, and credit history); certain personal choices relating to financial transactions between the individual and the governmental body, see Open Records Decision No. 600 (1992) (designation of beneficiary of employee's retirement benefits and optional insurance coverage; choice of particular insurance carrier; direct deposit authorization; and forms allowing employee to allocate pretax compensation to group insurance, health care, or dependent care); and identities of victims of sexual abuse, see Open Records Decision Nos. 440 (1986), 393 (1983), 339 (1982). After reviewing Attachment F, we find that portions of this information are protected from disclosure by the common-law right to privacy. Accordingly, we conclude that the city must withhold the information that we have marked pursuant to section 552.101 in conjunction with the common-law right to privacy. We note that the submitted information contains the officers' W-4 Forms. A W- 4 form is confidential under section 6103(a) of title 26 of the United States Code.(3) Therefore, the city must withhold the submitted W-4 forms, which we have marked, under section 552.101 of the Government Code in conjunction with federal law. Next, you argue that certain information is excepted from disclosure under section 552.117 of the Government Code. Section 552.117(a)(2) excepts from disclosure the present and former home addresses and telephone numbers, social security numbers, and family member information of a peace officer regardless of whether the officer requests confidentiality for this information under section 552.024 of the Government Code.(4) You indicate that the individuals at issue were licensed peace officers when the city received this request. Therefore, the city must withhold the information we have marked under section 552.117(a)(2) of the Government Code.(5) Next, you argue that some of the submitted information is excepted under section 552.130 of the Government Code. This section excepts from disclosure "information [that] relates to . . . a motor vehicle operator's or driver's license or permit issued by an agency of this state [or] a motor vehicle title or registration issued by an agency of this state." Thus, the city must withhold the information we have marked under section 552.130 of the Government Code. Finally, we note that some of the materials at issue may be protected by copyright. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. Attorney General Opinion JM-672 (1987). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. Id. If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit. See Open Records Decision No. 550 (1990). In summary, we conclude that the city must rely on our decisions in Open Records Letter Nos. 2003-5460 (2003) and 2003-5685 (2003) with respect to the information requested in this instance that was previously ruled upon in those decisions. To the extent that the information requested in this instance was not the subject of those prior rulings, we conclude (1) Attachment E is confidential under section 143.089(g) of the Local Government Code and must be withheld under section 552.101 of the Government Code, (2) you must withhold the information in Attachment F that we have marked under section 552.101 in conjunction with common-law privacy, (3) the W-4 forms that we have marked must be withheld under section 552.101 in conjunction with federal law, (4) you must withhold the information we have marked under sections 552.117 and 552.130 of the Government Code.(6) The remaining submitted information must be released to the requestor in compliance with the applicable copyright law. 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 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, Sarah I. Swanson
c: Mr. Bob Harrell
Footnotes 1. The four criteria for this type of "previous determination" are 1) the records or information at issue are precisely the same records or information that were previously submitted to this office pursuant to section 552.301(e)(1)(D) of the Government Code; 2) the governmental body which received the request for the records or information is the same governmental body that previously requested and received a ruling from the attorney general; 3) the attorney general's prior ruling concluded that the precise records or information are or are not excepted from disclosure under the Act; and 4) the law, facts, and circumstances on which the prior attorney general ruling was based have not changed since the issuance of the ruling. See Open Records Decision No. 673 (2001). 2. Because we are able to make this determination, we need not address your remaining claims for Attachment E. 3. We note that return information of any taxpayer may be disclosed to any person that the taxpayer designates. See 26 U.S.C. § 6103(c). 4. "Peace officer" is defined by article 2.12 of the Code of Criminal Procedure. 5. We note that an individual's personal post office box number is not a "home address" and therefore may not be withheld under section 552.117. See Gov't Code § 552.117; Open Records Decision No. 622 at 4 (1994) ("The legislative history of section 552.117(1)(A) makes clear that its purpose is to protect public employees from being harassed at home. See House Committee on State Affairs, Bill Analysis, H.B. 1976, 69th Leg. (1985); Senate Committee on State Affairs, Bill Analysis, H.B. 1976, 69th Leg. (1985)"); see also Open Records Decision Nos. 658 at 4 (1998) (statutory confidentiality provision must be express and cannot be implied), 478 at 2 (1987) (language of confidentiality statute controls scope of protection), 465 at 4-5 (1987) (statute explicitly required confidentiality). 6. Because our ruling is dispositive, we need not address your remaining argument. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |