January 31, 2007

Ms. Cary Grace
Assistant City Attorney
City of Austin - Law Department
P. O. Box 1088
Austin, Texas 78767-1088

OR2007-01160

Dear Ms. Grace:

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# 270420.

The Police Monitor's Office of the City of Austin (the "city") received a request for memoranda published within the last 24 months or pending publication by a citizens review panel which outline recommendations to the Austin Police Department and the city on issues of police brutality and police misconduct. You state that you have released some information to the requestor. 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 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(g). We understand that the City of Austin 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. See Local Gov't Code § 143.089(a), (g). 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). ⁽²⁾ 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 department because of its investigation into a police officer's misconduct, and the department must forward them to the civil service commission for placement in the civil service personnel file. Id. 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. See 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. ⁽³⁾ See City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556 (Tex. App.--San Antonio 2000, pet. denied); City of San Antonio v. Texas Attorney General, 851 S.W.2d 946, 949 (Tex. App--Austin 1993, writ denied).

A qualified civil service municipality may elect under subchapter I of chapter 143 of the Local Government Code to enter into an agreement with a police association regarding "wages, salaries, rates of pay, hours of work, other terms and conditions of employment, [and] other personnel issues." ⁽⁴⁾ Local Gov't Code § 143.303. When a qualified municipality enters into such an agreement, the agreement "supercedes a previous statute concerning wages, salaries, rates of pay, hours of work, or other terms and conditions of employment to the extent of any conflict with the statute" and "preempts any contrary statute, executive order, local ordinance, or rule adopted by the state or a political subdivision or agent of the state including a personnel board, a civil service commission, or a home-rule municipality." Local Gov't Code § 143.307(a), (b). However, an agreement "may not diminish or qualify any right, benefit, or privilege of any employee under this chapter or other law" unless the change is approved by a majority of the police association. See id. § 143.307(c).

You inform us that in April 2004 the City of Austin and the Austin Police Association entered into an agreement pursuant to subchapter I, and the agreement remains in effect. See Agreement Between The City of Austin and The Austin Police Association (hereinafter the "Agreement"). Article 16 of the Agreement establishes the office of the police monitor and sets forth the confidentiality provisions related to records held by the police monitor. Agreement, Art. 16, §§ 1-2, (8)(a), pp. 30-31, 40. Section 8(a) of Article 16 of the Agreement provides in pertinent part:

Information concerning the administrative review of complaints against officers, including but not limited to Internal Affairs Division files and all contents thereof, are intended solely for the Department's use pursuant to Section 143.089(g) of the Texas Local Government Code (the 143.089(g) file.). All records of the Police Monitor's office that relate to individual case investigations and the APD 143.089(g) file, although same are not APD files or records, shall have the same statutory character in the hands of the Police Monitor, and shall not be disclosed by any person, unless otherwise authorized by law.

Agreement, Art. 16, § 8(a), p. 40.

Article 16 of the Agreement also establishes that some information is public and provides that section 143.089(g) is modified and superceded in order to permit the release of the following types of information:

1. A report setting forth the basis and concerns of the Panel supporting any recommendation for an Independent Investigation.

...

3. A report setting forth any policy recommendations made by the Panel.

Agreement, Art. 16, § 5(d), p.38.

You inform us that the information at issue is also maintained in the department's internal files pursuant to section 143.089(g). You further state that the submitted information consists of the police monitor's records of investigations of police officers that did not result in disciplinary action. Based on your representations and our review of the documents at issue, you must release the information that we have marked pursuant to section 5(d)(1) and (3) of Article 16 of the Agreement. Furthermore, we agree that the remaining information you assert is confidential must be withheld pursuant to section 143.089(g) of the Local Government Code and section 552.101 of the Government Code.

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. 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,

Kara A. Batey

Assistant Attorney General

Open Records Division

KAB/krl

Ref: ID# 270420

Enc. Submitted documents

c: Mr. David A. Sheppard

Attorney at Law

700 Lavaca, #1550

Austin, Texas 78701

(w/o enclosures)

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. Chapter 143 prescribes the following types of disciplinary actions: removal, suspension, demotion, and uncompensated duty. See id. §§ 143.051-.055.

3. We note that section 143.089(g) requires a police department that 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.

4. Subchapter I of the Local Government Code applies in part to municipalities with a population of 460,000 that operates under a city manager form of government. See Local Gov't Code § 143.301. The submitted Agreement indicates that the City of Austin is such a qualified municipality.

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