March 10, 2010

Mr. C. Patrick Phillips

Assistant City Attorney

City of Fort Worth

1000 Throckmorton Street, 3^rd Floor

Fort Worth, Texas 76102

OR2010-03456

Dear Mr. Phillips:

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# 372181 (Forth Worth PIR Nos. 1238-10, 1336-10, 1342-10, and 1878-10).

The City of Fort Worth (the "city") received four requests for the personnel records for a named police officer, a specified accident report, and a specified car video. You state you will release a portion of the requested information. You state you have redacted Texas motor vehicle record information relating to individuals other than the requestors under section 552.130 of the Government Code pursuant to previous determinations issued to the city. ⁽¹⁾ You also state you have redacted social security numbers pursuant to section 552.147 of the Government Code. ⁽²⁾ You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note that you have redacted information from the submitted documents in Exhibit E that you seek to withhold. You do not assert, nor does our review of our records indicate, that you have been authorized to withhold this information without seeking a ruling from this office. See Gov't Code § 552.301(a); Open Records Decision No. 673 (2001). As we are able in this instance to ascertain the nature of the information you have redacted, we will determine whether it is excepted from public disclosure. In the future, the city must not redact requested information that it submits to this office in seeking an open records ruling, unless the information is the subject of a previous determination under section 552.301. See Gov't Code §§ 552.301(e)(1)(D), .302. Failure to comply with section 552.301 may result in the information being presumed public under section 552.302. See id.

We also note that you did not submit the requested accident report for our review. Therefore, to the extent this information existed on the date the city received the requests, we assume the city has released it to the requestors. If you have not released any such information, you must release it to the requestors at this time. See id. §§ 552.301(a); .302; Open Records Decision No. 664 (2000) (if governmental body concludes that no exceptions apply to requested information, it must release information as soon as possible under circumstances).

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 other statutes make confidential, such as section 143.089 of the Local Government Code. You state the city is a civil service city under chapter 143 of the Local Government Code. Section 143.089 provides for the existence of two different types of personnel files relating to a police officer: one that must be maintained as part of the officer's civil service file and another the police department may maintain for its own internal use. See Local Gov't Code § 143.089(a), (g). Under section 143.089(a), the officer's civil service file must contain certain specified items, including commendations, periodic evaluations by the police officer's supervisor, and documents relating to any misconduct in which the department took disciplinary action against the officer under chapter 143 of the Local Government Code. Id. § 143.089(a)(1)-(2). Chapter 143 prescribes the following types of disciplinary actions: removal, suspension, demotion, and uncompensated duty. Id. §§ 143.051-.055; see Attorney General Opinion JC-0257 (written reprimand is not disciplinary action for purposes of Local Gov't Code chapter 143). 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). See Abbott v. 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 are in the 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. ⁽³⁾ Id. Such records may not be withheld under section 552.101 of the Government Code in conjunction with section 143.089 of the Local 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 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 143.089(g) is confidential and must not be released. City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946, 949 (Tex. App.-Austin 1993, writ denied).

You state that the submitted information in Exhibit C is contained in the city police department's internal personnel file for the named officer under section 143.089(g). We note that the submitted files include commendations and performance evaluations, subject to sections 143.089(a)(1) and 143.089(a)(3). These records must also be placed in the officer's civil service file under section 143.089(a). In this instance, the request was received by the city, which has access to the files maintained under both subsections 143.089(a) and 143.089(g); therefore, the request encompasses both of these files. Thus, except for the civil service file information that we have marked for release, the remaining information in Exhibit C 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.

Section 552.101 of the Government Code also encompasses section 550.065 of the Transportation Code. Section 550.065(b) states that except as provided by subsection (c), accident reports are privileged and confidential. See Transp. Code § 550.065. Section 550.065(c)(4) provides for the release of accident reports to a person who provides two of the following three pieces of information: (1) date of the accident; (2) name of any person involved in the accident; and (3) specific location of the accident. Id. § 550.065(c)(4). Under this provision, the Texas Department of Transportation or another governmental entity is required to release a copy of an accident report to a person who provides the agency with two or more pieces of information specified by the statute. Id. The requestors have not provided the city with two of the three pieces of information; thus, you must withhold the accident report in Exhibit D under section 552.101 in conjunction with section 550.065(b) of the Transportation Code.

Section 552.101 also encompasses information protected by the doctrine of common-law privacy. Common-law privacy protects information if it (1) contains highly intimate or embarrassing facts, the publication of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). The types of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation include information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. Id. at 683. This office has found that some kinds of medical information or information indicating disabilities or specific illnesses are confidential under common-law privacy. See Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). Upon review, we agree that the medical information you have marked in Exhibit E is highly intimate or embarrassing and not of legitimate public interest and must be withheld under section 552.101 of the Government Code in conjunction with common-law privacy.

You raise section 552.108 of the Government Code for the submitted information in Exhibit F that is responsive to one of the December 17, 2009 requests, Fort Worth PIR No. 1336-10. Section 552.108(a)(1) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code § 552.108(a)(1). A governmental body claiming section 552.108(a)(1) must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You submitted an affidavit stating that the submitted information is currently under investigation by the city's police department and pending possible prosecution by the Tarrant County District Attorney's Office. Based on your representation and our review, we conclude that the release of the information you seek to withhold would interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases). Accordingly, the city may withhold the information in Exhibit F under section 552.108(a)(1) of the Government Code.

In summary, (1) with the exception of the information maintained in the officer's civil service file, the city must withhold the remaining information in Exhibit C under section 552.101 of the Government Code in conjunction with section 143.089(g) of the Local Government Code; (2) the city must withhold the accident report in Exhibit D under section 552.101 of the Government Code in conjunction with section 550.065(b) of the Transportation Code; (3) the city must withhold the information you have marked in Exhibit E under section 552.101 of the Government Code in conjunction with common-law privacy; and (4) the city may withhold the information in Exhibit F under section 552.108(a)(1) of the Government Code. The remaining information must be released.

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, toll free at (888) 672-6787.

Sincerely,

Andrea L. Caldwell

Assistant Attorney General

Open Records Division

ALC/eeg

Ref: ID# 372181

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. See Open Records Letter Nos. 2006-14726 (2006) and 2007-00198 (2007); see also Gov't Code § 552.301(a); Open Records Decision No. 673 at 7-8 (2001).

2. Section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act.

3. 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.

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