 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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August 8, 2007 Ms. Doreen E. McGookey OR2007-10096 Dear Ms. McGookey: 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# 286718. The Sherman Fire Department (the "department") received a request for the documents that Chief Jones is keeping on the requestor for possible future disciplinary action. You claim that the submitted information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted information. 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 other statutes make confidential. You contend that the submitted information is confidential under section 143.089 of the Local Government Code. We understand that the city is a civil service city under chapter 143 of the Local Government Code. Section 143.089 contemplates two different types of personnel files: a fire fighter's civil service file that a city's civil service director is required to maintain, and an internal file that the fire department may maintain for its own use. Local Gov't Code § 143.089(a), (g). In cases in which a fire department investigates a fire fighter's misconduct and takes disciplinary action against the fire fighter, 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 fire fighter's civil service file maintained under section 143.089(a). (1) 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 fire fighter'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 Local Gov't Code § 143.089(f); Open Records Decision No. 562 at 6 (1990). However, a document relating to a fire fighter's alleged misconduct may not be placed in his
civil service personnel file if there is insufficient evidence to sustain the charge of
misconduct. Id. § 143.089(b). Information that reasonably relates to a fire fighter's
employment relationship with the fire department and that is maintained in the fire
department's internal file pursuant to section 143.089(g) is confidential and must not be
released. 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. Tex. Attorney Gen., 851
S.W.2d 946, 949 (Tex. App.--Austin 1993, writ denied). (2)
You indicate that the submitted file is maintained by the fire chief for his own use and is not
maintained in the fire fighter's civil service file. You state that the information is "directly
related to the fire fighter's employment relationship." Because the submitted fire chief's file
is maintained in the department's internal personnel file under section 143.089(g), we
conclude that the information must be withheld pursuant to section 552.101. (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, 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, Melanie J. Villars Assistant Attorney General Open Records Division MJV/jh Ref: ID# 286718 Enc. Submitted documents c: Captain Doug Blackburn c/o Ms. Doreen McGookey City of Sherman P.O. Box 1106 Sherman, Texas 75091-1106 (w/o enclosures)
1. Chapter 143 prescribes the following types of disciplinary actions: removal, suspension, demotion,
and uncompensated duty. See Local Gov't Code §§ 143.051-.055.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |