 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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January 20, 2009 Mr. Charles H. Weir Assistant City Attorney City of San Antonio P. O. Box 839966 San Antonio, Texas 78283-3966 OR2009-00790 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# 332938 (SAPD File No. ORR08-2096). The San Antonio Police Department (the "department") received eights requests from the same requestor for several categories of information pertaining to eight named department police officers. You state that some of the requested information does not exist in the department's records. (1) 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. We note that a portion of the submitted information, which we have marked, is not responsive to this request because it does not pertain to any of the named officers. The department need not release nonresponsive information in response to this request and this ruling will not address that information. Next, we note, and you acknowledge, the department failed to meet the deadlines prescribed by section 552.301 of the Government Code in requesting an open records decision from this office. See Gov't Code § 552.301(b), (e). A governmental body's failure to comply with the requirements of section 552.301 results in the legal presumption that the information is public and must be released. See id. § 552.302. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.-Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302); Open Records Decision No. 319 (1982). Because section 552.101 can provide a compelling reason to withhold information, we will address your argument against disclosure of this information. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision" and encompasses information that is made confidential by statute. Gov't Code § 552.101. You assert that the requested information is "contained in and derived from" the department's personnel files. You raise section 552.101 in conjunction with section 143.089 of the Local Government Code, which 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 note 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). (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 Local Gov't Code § 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. Id. § 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 some of the officers to whom the submitted information pertains. Therefore, this information is subject to section 143.089(a)(2) and must also be maintained in the officers' 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. (3) 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. This letter ruling is limited to the particular information 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 information or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General at (512) 475-2497. Sincerely, Matt Entsminger Assistant Attorney General Open Records Division MRE/jb Ref: ID# 332938 Enc. Submitted documents cc: Requestor (w/o enclosures)
1. We note that the Act does not require a governmental body to release information that did not exist
when it received a request or create responsive information. See Econ. Opportunities Dev. Corp. v.
Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision
Nos. 605 at 2 (1992), 555 at 1 (1990), 452 at 3 (1986), 362 at 2 (1983).
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 |