 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 2, 2009 Ms. T. Trisha Dang Assistant City Attorney P.O. Box 9277 Corpus Christi, Texas 78469-9277 OR2009-01304 Dear Ms. Dang: 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# 333789. The Corpus Christi Police Department (the "department") received a request for information related to a former named police officer. You claim 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 information. 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 section 143.089 of the Local Government Code. Section 143.089 contemplates two different types of personnel files: a police officer's civil service file that the 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). The police officer's civil service file must contain specific items, including commendations, periodic evaluations by the officer's supervisor, and documents from the employing department relating to any misconduct in which the department took disciplinary action against the officer under chapter 143 of the Local Government Code. (1) See id. § 143.089(a)(1)-(2). In cases in which a police department investigates an 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). 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 an 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 personnel 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 (Tex. App.--Austin 1993, writ denied). You inform us the City of Corpus Christi is a civil service city under chapter 143 of the Local Government Code. You state the submitted information is maintained in the former named officer's departmental personnel file in accordance with chapter 143 of the Local Government Code. Based on your representations and our review, we agree that section 143.089(g) of the Local Government Code is applicable to the submitted information. (2) In this instance, the Board of Law Examiners (the "board") is the requestor. We note the board has submitted an authorization and release form signed by the former officer at issue. However, although section 143.089(e) provides officers a right of access to their own civil service file maintained under section 143.089(a), this office has determined that officers do not have a right to their own internal file maintained by a police department pursuant to section 143.089(g). See Open Records Decision No. 650 at 3 (1996) (confidentiality provision of section 143.089(g) contains no exceptions). Thus, because the records at issue are maintained in the department's internal file pursuant to section 143.089(g), the board does not have a right of access to these records under section 143.089. We also note that although section 552.023 of the Government Code grants a person's authorized representative a special right of access to information held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person's privacy interests, confidentiality under section 143.089(g) is not privacy based. Thus, because the submitted records are maintained pursuant to section 143.089(g), the right of access under section 552.023 does not apply this information. Finally, you have not identified, nor are we aware of, any statute that would allow the board a right of access to this information. See e.g., Gov't Code § 411.100 (allowing the board access to criminal history records in certain circumstances). Furthermore, the interagency transfer doctrine cannot operate to allow the department to transfer the confidential information to the board. See Open Records Decision No. 650 at 4 (1996) (absent federal law requiring disclosure of the records maintained within the internal section 143.089(g) file, the information may not be disclosed to a federal law enforcement agency as permissible interagency transfer). Therefore, the department must withhold the submitted information in its entirety under section 552.101 of the Government Code in conjunction with section 143.089(g) of the Local 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, Jordan Hale Assistant Attorney General Open Records Division JH/jb Ref: ID# 333789 Enc. Submitted documents cc: Requestor (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. An oral or written reprimand does not
constitute discipline under chapter 143.
Section 143.089(g) requires a police 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.
You inform us that you have done so. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |