 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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April 25, 2007 Mr. David K. Walker OR2007-04683 Dear Mr. Walker: 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# 277598. The Montgomery County Sheriff's Department (the "department") received a request for the personnel file of a former department deputy. You state that some of the requested information has been provided to the requestor, but claim that the submitted information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Section 552.108(a)(2) of the Government Code excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. However, section 552.108 generally is not applicable to an internal administrative investigation involving a law enforcement officer that did not result in a criminal investigation or prosecution. See City of Fort Worth v. Cornyn, 86 S.W.3d 320 (Tex. App. 2002, no pet.); Open Records Decision No. 562 at 10 (1990); Morales v. Ellen, 840 S.W.2d 519, 525-26 (Tex. Civ. App.-El Paso 1992, writ denied) (statutory predecessor not applicable to internal investigation that did not result in criminal investigation or prosecution); Open Records Decision No. 350 at 3-4 (1982). The submitted information consists of three internal administrative investigations involving the former deputy. You do not inform us that these internal administrative investigations resulted in criminal investigations by the department or criminal prosecution. After review of your arguments and the submitted information, we conclude you have not established that the submitted information pertains to criminal investigations involving the former deputy; therefore, the department may not withhold the submitted information under section 552.108 of the Government Code. You assert that the submitted information is excepted under section 552.101 of the Government Code, which 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. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007 of the Family Code. Section 58.007(c) provides as follows: Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be: (1) if maintained on paper or microfilm, kept separate from adult files and records; (2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and (3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B. Fam. Code § 58.007(c). The submitted internal administrative investigations do not consist of juvenile law enforcement records for purposes os section 58.007. Cf. id. § 51.02(2)(A) (for Title 3 of Family Code, "child" defined as person ten years of age or older and under seventeen years of age). Therefore, this information is not confidential under section 58.007(c) of the Family Code, and the department may not withhold it under section 552.101 of the Government Code on that ground. Section 552.101 also encompasses section 261.201 of the Family Code. Section 261.201(a) provides as follows: The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency: (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. Fam. Code § 261.201(a). The submitted internal administrative investigations do not consist of files, reports, records, communications, or working papers used or developed in an investigation under chapter 261; therefore, the submitted information is not confidential under section 261.201, and the department may not withhold it under section 552.101 on that ground. Section 552.101 also encompasses section 1703.306 of the Occupations Code. Section 1703.306(a) provides that "[a] polygraph examiner, trainee, or employee of a polygraph examiner, or a person for whom a polygraph examination is conducted or an employee of the person, may not disclose information acquired from a polygraph examination to another person[.]" Some of the submitted information consists of polygraph information that is confidential under section 1703.306, and the requestor does not appear to have a right of access to the information under that section; therefore, the department must withhold this information, which we have marked, under section 552.101 of the Government Code. Section 552.101 also encompasses the doctrine of common-law privacy, which protects information that (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. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). The types 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. Id. at 683. In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court addressed the applicability of the common-law privacy doctrine to files of an investigation of allegations of sexual harassment. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. Id. at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the public's interest was sufficiently served by the disclosure of such documents. Id. In concluding, the Ellen court held that "the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id. Thus, if there is an adequate summary of an investigation of alleged sexual harassment, the investigation summary must be released under Ellen, but the identities of the victims and witnesses of the alleged sexual harassment must be redacted, and their detailed statements must be withheld from disclosure. See Open Records Decision Nos. 393 (1983), 339 (1982). However, common-law privacy does not protect information about a public employee's alleged misconduct on the job or complaints made about a public employee's job performance. See Open Records Decision Nos. 438 (1986), 405 (1983), 230 (1979), 219 (1978). The submitted information consists of three internal administrative investigations of sexual harassment by the former deputy. Two of these investigations contain adequate summaries of the investigations and statements by the deputy. These summaries and statements are thus not confidential under common-law privacy; however, information within these documents identifying the victim and witnesses, as well as certain medical information, are confidential under common-law privacy. See Ellen, 840 S.W.2d at 525; see also Indus. Found., 540 S.W.2d at 685. The remaining information in these investigations is confidential under common-law privacy. See id. The third investigation does not contain an adequate summary; therefore, the information identifying the alleged victim and witnesses to the sexual harassment within this investigation is confidential under common-law privacy, but the remaining information in the third investigation is not. We have marked the information that is confidential under common-law privacy, and the department must withhold this information under section 552.101 of the Government Code. We note that section 552.117 of the Government Code is applicable to some of the remaining information. Section 552.117(a)(1) of the Government Code excepts from disclosure the current and former home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024 of the Government Code. But a pager, fax, or cell phone number provided to an employee at public expense may not be withheld under section 552.117. See Open Records Decision No. 506 at 5-7 (1988) (statutory predecessor to section 552.117 not applicable to cell phone numbers provided and paid for by governmental body and intended for official use). Whether a particular piece of information is protected by section 552.117(a)(1) must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Section 552.117(a)(2) excepts from disclosure this same information regarding a peace officer, as defined by article 2.12 of the Texas Code of Criminal Procedure, regardless of whether the officer elected under section 552.024 or 552.1175 of the Government Code to keep such information confidential. The department must withhold the information of the former deputy that we have marked under section 552.117(a)(2). We have marked additional information that appears to pertain to other department officers or employees. To the extent this information pertains to current or former department employees who are officers, the department must withhold this information under section 552.117(a)(2) of the Government Code. To the extent this information pertains to current or former civilian employees of the department, the department must withhold this information section 552.117(a)(1) of the Government Code if the employees at issue elected to keep such information confidential prior to the department's receipt of this request for information. To conclude, the department must withhold the information marked under section 552.101 of the Government Code in conjunction with section 1703.306 of the Occupations Code and common-law privacy and the information pertaining to the former deputy marked under section 552.117 of the Government Code. The department must also withhold the remaining information we have marked under section 552.117 if it pertains either to current or former department officers, or to current or former department employees who timely elected to withhold that information. The department must release the remaining information. 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, James L. Coggeshall Assistant Attorney General Open Records Division JLC/jb Ref: ID# 277598 Enc. Submitted documents c: Mr. James McDougal JAMAC Investigation 122 West Davis, Suite 104 Conroe, Texas 77301 (w/o enclosures)
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