 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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September 6, 2007 Ms. Holly C. Lytle OR2007-11636 Dear Ms. Lytle: 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# 288513. The El Paso County Sheriff's Office (the "sheriff's office") received a request for a specified internal affairs investigation file. You state that the requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you raise and have reviewed the information you submitted. We have also received and considered comments submitted by the requestor's client. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released). Initially, we note that the submitted information is subject to required public disclosure under section 552.022 of the Government Code, which provides in relevant part: the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body[.] Gov't Code § 552.022(a)(1). The submitted information consists of a completed internal affairs investigation. Therefore, pursuant to section 552.022, the sheriff's office must release the completed investigation unless it is confidential under other law. The sheriff's office raises section 552.103 for this information, but this is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App.--Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally). As such, section 552.103 does not qualify as "other law" that makes information confidential for the purposes of section 552.022. Therefore, the sheriff's office may not withhold the submitted information under section 552.103 of the Government Code. We note, however, that a portion of the submitted information is subject to section 552.101 of the Government Code. (1) Section 552.101 is "other law" for the purpose of section 552.022. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," and encompasses information made confidential by other statutes. Section 1703.306(b) of the Occupations Code provides that "[a] governmental agency that acquires information from a polygraph examination under this section shall maintain the confidentiality of the information." The sheriff's office must withhold the polygraph information we have marked under section 552.101 of the Government Code in conjunction with section 1703.306(b) of the Occupations Code. In summary, the marked polygraph information must be withheld under section 552.101 of the Government Code in conjunction with section 1703.306(b) of the Occupations Code. The remaining information must be released. (2) 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, Chanita Chantaplin-McLelland Assistant Attorney General Open Records Division CC/jb Ref: ID#288513 Enc. Submitted documents cc: Mr. John Taylor 3120 Titanic Avenue El Paso, Texas 79904 (w/o enclosures) Mr. Robert Skipworth Attorney at Law 310 North Mesa, Suite 600 El Paso, Texas 79901 (w/o enclosures)
1. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental
body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480
(1987), 470 (1987).
We note that some of the information being released is confidential and not subject to release to the
general public. However, the requestor in this instance has a special right of access to the information. Gov't
Code § 552.023 (person or person's authorized representative has special right of access to records that contain
information relating to the person that are protected from public disclosure by laws intended to protect that
person's privacy interests). Because such information may be confidential with respect to the general public,
if the sheriff's office receives another request for this information from an individual other than this requestor,
the sheriff's office should again seek our decision. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |