 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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December 7, 2007 Mr. Charles H. Weir OR2007-16099 Dear Mr. Weir: 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# 296518. The San Antonio Police Department (the "department") received twenty-nine requests from the same requestor for the disciplinary investigations conducted on twenty-nine named department officers, the names of the individuals who have made complaints against the officers and their statements, and a list of individuals who have been arrested by the named officers. You state that the department does not have responsive information for two of the named officers. (1) You claim that the 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 representative sample of information. (2) Section 552.101 of the Government Code 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 that is made confidential by other statutes. Section 143.089 of the Local Government Code contemplates two different types of personnel files, a police officer's civil service file that a city's civil service director is required to maintain, and an internal file that the police department may maintain for its own use. Local Gov't Code § 143.089(a), (g). We understand that the City of San Antonio is a civil service city under chapter 143 of the Local Government Code. 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). (3) 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 a police 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. Local Gov't Code § 143.089(b). Information that reasonably relates to a police 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. 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 General, 851 S.W.2d 946, 949 (Tex. App.--Austin 1993, writ denied). You indicate that the requested information is contained in the department's personnel files for each of the named officers and that this information is maintained under section 143.089(g). We note some of the submitted information relates to investigations of misconduct that resulted in suspensions of the officer to whom the submitted information pertains. Therefore, this information is subject to section 143.089(a)(2) and must also be maintained in the officer's civil service file under section 143.089(a). You state that the request has been forwarded to the San Antonio Fire Fighter and Police Officers Civil Service Commission. (4) Therefore, we agree that the requested information is confidential under section 143.089(g) of the Local Government Code and must be withheld from disclosure under section 552.101 of the Government Code. However, the requestor also seeks a list of all individuals arrested by the named officers. The records of these arrests should be maintained by the department independently of the officers' personnel files. The department may not engraft the confidentiality afforded to records under section 143.089(g) to other records that exist independently of the officers' departmental files. Thus, to the extent the names of individuals arrested by the named officers are maintained in law enforcement files, such records are not confidential under section 143.089(g) and may not be withheld under section 552.101 of the Government Code. Further, because you have not raised any other exceptions against disclosure of this information, it must be released. 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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, 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 challenge 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/jb Ref: ID# 296518 Enc. Submitted documents c: Mr. Phillip Stauffer 301 South Main Street San Antonio, Texas 78204 (w/o enclosures)
1. The Act does not require a governmental body to release information that did not exist when a request
for information was received, create information responsive information, or obtain information that is not held
by or on behalf of the city. See Econ. Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266, 267-68 (Tex.
Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision No. 452 at 3 (1986).
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.
Chapter 143 prescribes the following types of disciplinary actions: removal, suspension, demotion,
and uncompensated duty. See Local Gov't Code §§ 143.051-.055. A letter of reprimand does not constitute
discipline under chapter 143.
Section 143.089 (g) requires a police or fire 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. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |