 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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August 8, 2006 Mr. Rashaad V. Gambrell
OR2006-08916 Dear Mr. Gambrell: 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# 256418. The City of Houston (the "city") received a request for information pertaining to a named captain in the Houston Police Department (the "department"), including complaints and personnel information. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.147 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." This section encompasses information protected by other statutes. Section 143.1214 of the Local Government Code provides in part the following: (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 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 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). You explain that the submitted information consists of investigations by the department of alleged misconduct by the police officer at issue. You assert that Exhibit 3 contains the investigation of an allegation that was sustained, and the officer at issue was disciplined; however, you inform us that the 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 the documents from Exhibit 3 meeting the requirements of § 143.1214(c) to the appropriate officer's personnel file maintained under 143.089(a)." You also assert that Exhibit 2 consists of an investigation that resulted in the exoneration of the officer, and no disciplinary action was taken. Thus, you indicate that the submitted information is maintained by the department in departmental files and that it is not part of the police officer's civil service personnel file. See id. § 143.1214(c); see also id. § 143.089(g). Based on your representations and our review of the information at issue, we agree that the submitted information is confidential under section 143.1214 of the Local Government Code, and the department must withhold it under section 552.101 of the Government Code.(2) See Open Records Decision No. 642 (1996). 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); 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 Office of the Attorney General 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, James L. Coggeshall
c: Mr. Raymond D. Rice
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. Because we are able to resolve this under section 143.1214, we do not address your other arguments for exception of the submitted information. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |