April 8, 2010

Ms. Jennifer C. Cohen

Assistant General Counsel

Texas Department of Public Safety

P.O. Box 4087

Austin, Texas 78773-0001

OR2010-04931

Dear Ms. Cohen:

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# 375216 (ORA # 10-0103).

The Texas Department of Public Safety (the "department") received a request for documents, photographs, and audio and video recordings related to a specified investigation of a named Texas Ranger. 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 have also received and considered comments from the requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released).

Section 552.101 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 other statutes make confidential. Section 411.00755 of the Government Code states in pertinent part:

(b) The personnel records of a commissioned officer of the department may not be disclosed or otherwise made available to the public, except the department shall release in accordance with Chapter 552:

(1) any letter, memorandum, or document relating to:

. . .

(B) misconduct by the officer, if the letter, memorandum, or document resulted in disciplinary action[.]

Id. § 411.00755(b)(1)(B). Section 411.00755 provides that a personnel record "includes any letter, memorandum, or document maintained by the department that relates to a commissioned officer of the department[.]" Id. § 411.00755(a)(1). For the purpose of section 411.00755, "disciplinary action" means discharge, suspension, or demotion. Id. § 411.0072(a)(1).

The department states the submitted documents and audio recording are part of an administrative inquiry that did not result in the discharge, suspension, or demotion of the named officer. The department further asserts that "all records related to the administrative inquiry" are excepted under 411.00755. However, the requestor asserts that audio recordings do not constitute personnel records for purposes of section 411.00755. Although the requestor does not elaborate, to the extent the requestor is arguing that a recording is not a "letter, memorandum, or document" as referenced in section 411.00755(a)(1), and is thus not a "personnel record" as that term is defined, we reiterate that section 411.00755 provides that a personnel record "includes any letter, memorandum, or document maintained by the department that relates to a commissioned officer of the department[.]" Id. § 411.00755(a)(1). [Emphasis added]. According to the Code Construction Act, "'Includes' and 'including' are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded." See Gov't Code § 312.011(19). Therefore, based on the department's representations and our review, we conclude the information at issue, including the submitted audio recording, constitutes personnel records for purposes of section 411.00755(a)(1). Accordingly, the department must withhold the submitted information under section 552.101 of the Government Code in conjunction with section 411.00755(b) of the Government Code.

You ask this office to issue a previous determination with respect to any future request for records regarding an internal investigation of a peace officer which did not result in that officer's discharge, suspension, or demotion. See id. § 552.301(a) (allowing governmental body to withhold information subject to previous determination); Open Records Decision No. 673 (2001). We decline to issue such a previous determination at this time. Accordingly, 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 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,

Jennifer Burnett

Assistant Attorney General

Open Records Division

JB/dls

Ref: ID# 375216

Enc. Submitted documents

c: Requestor

(w/o enclosures)

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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