 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 21, 2005 Ms. YuShan Chang
OR2005-00637 Dear Ms. Chang: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 217238. The Houston Police Department (the "department") received a request for information pertaining to a named officer, including any complaints filed against the officer and the subsequent disposition of any such complaints. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.108, 552.1175 and 552.130 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information.(1) Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information protected by other statutes, such as section 143.089 of the Local Government Code. Section 143.089 of the Local Government Code provides for the existence of two different types of personnel files relating to a police officer: one that must be maintained as part of the officer's civil service file and another that the police department may maintain for its own internal use. See Local Gov't Code § 143.089(a), (g). The officer's civil service file must contain certain specified items, including commendations, periodic evaluations by the police officer's supervisor, and documents relating to any misconduct in any instance in which the police department took disciplinary action against the officer under chapter 143 of the Local Government Code. Id. § 143.089(a)(1)-(2). Chapter 143 prescribes the following types of disciplinary actions: removal, suspension, demotion, and uncompensated duty. Id. §§ 143.051-.055. 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). See Abbott v. 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 are in the 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. at 119, 121. Such records may not be withheld under section 552.101 of the Government Code in conjunction with section 143.089. See Local Gov't Code § 143.089(f); Open Records Decision No. 562 at 6 (1990). However, information relating to a police's 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. See Local Gov't Code § 143.089(b). Likewise, information maintained in a police department's personnel file pursuant to section 143.089(g) is confidential and must not be released. City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946, 949 (Tex. App.--Austin 1993, writ denied). You inform us that the information submitted as Exhibit 2 is contained in the police officer's departmental personnel file maintained under section 143.089(g). Based on your representation and our review of the information at issue, we conclude that Exhibit 2 is confidential under section 143.089(g) of the Local Government Code and is therefore excepted from disclosure under section 552.101 of the Government Code as information made confidential by law.(2) You argue that the remaining submitted information is protected from disclosure under section 143.1214 of the Local Government Code, which provides in part: (b) The department shall maintain an investigatory file that relates to a disciplinary action against a fire fighter or police officer that was overturned on appeal, or any document in the possession of the department that relates to a charge of misconduct against a fire fighter or police officer, regardless of whether the charge is sustained, only in a file created by the department for the department's use. The department may only release information in those investigatory files or documents relating to a charge of misconduct: (1) to another law enforcement agency or fire department; (2) to the office of a district or United States attorney; or (3) in accordance with Subsection (c). (c) The department head or the department head's designee may forward a document that relates to a disciplinary action against a fire fighter or police officer to the [civil service] 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) [of the Local Government Code] only if: (1) disciplinary action was actually taken against the fire fighter or police officer; (2) the document shows the disciplinary action taken; and (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(b)-(c). Exhibits 3 through 5 pertain to internal investigations by the department of alleged misconduct by the named police officer. You explain that the allegation at issue in Exhibit 5 was sustained and the officer at issue was disciplined. However, you indicate that the submitted information pertaining to this incident does not meet the conditions specified by section 143.1214(c) for inclusion in the officer's civil service personnel file. You further state that you have forwarded documents pertaining to Exhibit 5 that meet the requirements of section 143.1214(c) to the officer's personnel filed maintained under section 143.089(a). You also explain Exhibits 3 and 4 pertain to investigations in which disciplinary action was not taken against the officer. Thus, you indicate that Exhibits 3, 4 and 5 are maintained by the department in departmental files and are not part of the police officer's civil service personnel file. See id. § 143.1214(c); see also Local Gov't Code § 143.089(a)-(f). Based on your representations and our review of the information at issue, we agree that Exhibits 3, 4 and 5 are excepted from disclosure under section 552.101 of the Government Code in conjunction with section 143.1214 of the Local Government Code. See Open Records Decision No. 642 (1996) (concluding that files relating to investigations of Houston Fire Department personnel by Public Integrity Review Group of Houston Police Department were confidential under section 143.1214). In summary, Exhibit 2 is confidential under section 143.089(g) of the Local Government Code and is therefore excepted from disclosure under section 552.101 of the Government Code as information made confidential by law. Exhibits 3, 4 and 5 are confidential under section 143.1214 of the Local Government Code, and are therefore excepted from disclosure under section 552.101 of the Government Code.(3) 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, Marc A. Barenblat
c: Glen Cheek
Footnotes 1. We assume that the representative sample of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach and, therefore, does not authorize the withholding of any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. 2. Section 143.089(g) requires a police department who receives a request for information maintained in a file under section 143.089(g) to refer that person to the civil service director or the director's designee. We note that you have referred the requestor to the City of Houston's Human Resources Department. 3. Because we reach these conclusions under section 552.101 of the Government Code in conjunction with sections 143.089(g) and 143.1214 of the Local Government Code, we need not address your remaining arguments against disclosure. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |