 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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April 13, 2005 Ms. YuShan Chang
OR2005-03148 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# 221850. The Houston Police Department (the "department") received a request for information pertaining to specified incidents involving department officers. You claim that the submitted information is excepted from disclosure under sections 552.101, 552.117, 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) Initially, you acknowledge that the department did not fully comply with the requirements of section 552.301 of the Government Code in seeking this open records decision. Specifically, the department did not claim section 552.117 of the Government Code as an exception to disclosure within ten business days of receiving this written request. See Gov't Code § 552.301(a), (b). Moreover, the department did not submit written comments stating the reasons why the stated exceptions would allow the information to be withheld, or a copy of the responsive information, or representative samples thereof, within the fifteen business day period mandated by section 552.301(e). See Gov't Code § 552.301(e). The department's delay in this matter results in the presumption that the requested information is public. See id. § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ). In order to overcome this presumption, the department must provide compelling reasons why the information should not be disclosed. Hancock, 797 S.W.2d at 381. In this instance, since the applicability of all claimed exceptions can provide compelling reasons to withhold information from disclosure, we will address your arguments. 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. Section 143.1214 of the Local Government Code provides, in relevant 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 2 through 4 pertain to internal investigations by the department of alleged misconduct by police officers. You explain that the allegations at issue were sustained in Exhibit 2 but not in Exhibit 3, but that disciplinary action was taken against the officers in both Exhibits 2 and 3. You state that the department has forwarded documents from Exhibit 2 that meet the requirements of section 143.1214(c) to the officer's personnel filed maintained under section 143.089(a). However, you state that the information submitted as Exhibits 2 and 3 does not meet the conditions specified by section 143.1214(c) for inclusion in the officer's civil service personnel file. Further, you state that Exhibit 4 pertains to an investigation in which the allegation was sustained but disciplinary action was not taken against the officer. Thus, you indicate that Exhibits 2, 3, and 4 are maintained by the department in departmental files and are not part of any 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 2, 3 and 4 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). Because our conclusion is dispositive, we need not address your remaining arguments against disclosure. 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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, Lauren E. Kleine
c: Mr. Dale Lezon
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. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |