September 21, 2012

Mr. Stephen A. Cumbie

Assistant City Attorney

City of Fort Worth

1000 Throckmorton Street, Third Floor

Fort Worth, Texas 76102

OR2012-15098

Dear Mr. Cumbie:

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# 466164 (PIR No. W018341).

The City of Fort Worth (the "city") received a request for six categories of information regarding a named police officer, including (1) records of disciplinary investigations; (2) records regarding officer misconduct; (3) the names of persons who made complaints against the officer and their reports or statements; (4) information related to persons who were arrested by the officer and made complaints against him; (5) civil service records regarding the officer, including his age, law enforcement background, and previous employment; and (6) evaluations and other personnel records maintained by the Fort Worth Police Department (the "department"). You inform us some of the requested information either has been or will be released. You state other information will be redacted from responsive records pursuant to sections 552.130(c) and 552.147(b) of the Government Code, the previous determination issued to all governmental bodies under section 552.130(a)(2) in Open Records Decision No. 684 (2009), and previous determinations issued to the city in Open Records Letter Nos. 2006-14726 (2006) and 2007-00198 (2007). ⁽¹⁾ You claim other responsive information is excepted from disclosure under sections 552.101 and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the information you submitted.

We first note the requestor does not seek access to the officer's birth date and social security number. Thus, those types of information are not responsive to the request, and we do not address their public availability.

We also note the submitted information consists of personnel records. Although the named officer's personnel records are responsive to the request, the requestor also seeks access to law enforcement records, namely information regarding "all persons arrested by the [named o]fficer and who made complaints against him as a result of the arrest," including the arrested person's name, aliases, race, age, sex, occupation, address, telephone number, police department identification number, and physical condition, as well as the date and time of the arrest and the type of offense for which the person was arrested. Thus, the requestor also appears to seek access to the basic offense and arrest information held to be public in Houston Chronicle Publishing 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). See 531 S.W.2d at 186-88; Open Records Decision No. 127 at 3-4 (1976) (summarizing types of information deemed public by Houston Chronicle). We therefore assume the city has released law enforcement records responsive to this aspect of the request, to the extent such information existed when the city received the request. If not, then any such information must be released immediately. ⁽²⁾ See Gov't Code §§ 552.221, .301, .302; Open Records Decision No. 664 (2000).

Next, we address your exceptions to disclosure of the submitted information at issue. Section 552.101 of the Government Code excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This exception encompasses information other statutes make confidential. You claim section 552.101 in conjunction with section 143.089 of the Local Government Code. ⁽³⁾ Section 143.089 provides for the existence of two different types of personnel files relating to a police officer, including 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). 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 any instance in which the police department took disciplinary action against the officer under chapter 143 of the Local Government Code. See id. § 143.089(a)(1)-(2). Chapter 143 prescribes the following types of disciplinary actions: removal, suspension, demotion, and uncompensated duty. See id. § 143.051 et seq. 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. 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). Information relating to alleged misconduct or disciplinary action taken must be removed from the police officer's civil service file if the police department determines that there is insufficient evidence to sustain the charge of misconduct or that the disciplinary action was taken without just cause. See Local Gov't Code § 143.089(b)-(c).

Subsection(g) of section 143.089 authorizes the police department to maintain, for its own use, a separate and independent internal personnel file relating to a police officer. Section 143.089(g) provides as follows:

A fire or police department may maintain a personnel file on a fire fighter or police officer employed by the department for the department's use, but the department may not release any information contained in the department file to any agency or person requesting information relating to a fire fighter or police officer. The department shall refer to the director or the director's designee a person or agency that requests information that is maintained in the fire fighter's or police officer's personnel file.

Id. § 143.089(g). In City of San Antonio v. Texas Attorney General, 851 S.W.2d 946 (Tex. App.--Austin 1993, writ denied), the court addressed a request for information contained in a police officer's personnel file maintained by the police department for its use and the applicability of section 143.089(g) to the file. The records included in the departmental personnel file related to complaints against the police officer for which no disciplinary action was taken. The court determined section 143.089(g) made the records confidential. See id. at 949; see also City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556 (Tex. App.--San Antonio 2000, pet. denied) (restricting confidentiality under Local Gov't Code § 143.089(g) to "information reasonably related to a police officer's or fire fighter's employment relationship"); Attorney General Opinion JC-0257 at 6-7 (2000) (addressing functions of Local Gov't Code § 143.089(a) and (g) files).

You state the information in the folder titled "143.089(g)" is held in a personnel file maintained by the department. You inform us the information at issue is related to allegations of misconduct that either were determined to be unfounded or did not result in disciplinary action under chapter 143 of the Local Government Code. Based on your representations and our review, we conclude the "143.089(g)" information must be withheld under section 552.101 of the Government Code in conjunction with section 143.089(g) of the Local Government Code.

Section 552.101 of the Government Code also encompasses section 1703.306 of the Occupations Code, which is applicable to information acquired from a polygraph examination and provides as follows:

(a) A polygraph examiner, trainee, or employee of a polygraph examiner, or a person for whom a polygraph examination is conducted or an employee of the person, may not disclose information acquired from a polygraph examination to another person other than:

(1) the examinee or any other person specifically designated in writing by the examinee;

(2) the person that requested the examination;

(3) a member, or the member's agent, of a governmental agency that licenses a polygraph examiner or supervises or controls a polygraph examiner's activities;

(4) another polygraph examiner in private consultation; or

(5) any other person required by due process of law.

(b) The [Texas Department of Licensing and Regulation] or any other governmental agency that acquires information from a polygraph examination under this section shall maintain the confidentiality of the information.

(c) A polygraph examiner to whom information acquired from a polygraph examination is disclosed under Subsection (a)(4) may not disclose the information except as provided by this section.

Occ. Code § 1703.306. We have marked information acquired from a polygraph examination that must be withheld under section 552.101 of the Government Code in conjunction with section 1703.306 of the Occupations Code.

Section 552.101 of the Government Code also encompasses common-law privacy, which protects information that is highly intimate or embarrassing, such that its release would be highly objectionable to a person of ordinary sensibilities, and of no legitimate public interest. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976). To demonstrate the applicability of common-law privacy, both elements of the test must be established. Id. at 681-82. Common-law privacy encompasses the specific types of information held to be intimate or embarrassing in Industrial Foundation. See 540 S.W.2d at 683 (information relating to sexual assault, pregnancy, mental or physical abuse in workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs). This office has determined other types of information also are private under section 552.101. See generally Open Records Decision No. 659 at 4-5 (1999) (summarizing information attorney general has held to be private). We have concluded personal financial information related only to an individual ordinarily satisfies the first element of the common-law privacy test, but the public has a legitimate interest in the essential facts about a financial transaction between an individual and a governmental body. See Open Records Decision Nos. 600 at 9-12 (1992) (identifying public and private portions of certain state personnel records), 545 at 4 (1990) (attorney general has found kinds of financial information not excepted from public disclosure by common-law privacy to generally be those regarding receipt of governmental funds or debts owed to governmental entities), 523 at 4 (1989) (noting distinction under common-law privacy between confidential background financial information furnished to public body about individual and basic facts regarding particular financial transaction between individual and public body), 373 at 4 (1983) (determination of whether public's interest in obtaining personal financial information is sufficient to justify its disclosure must be made on case-by-case basis); see also Attorney General Opinion GA-0572 at 3-5 (2007) (public employee's net salary protected by common-law privacy because it involves disclosure of personal financial information). We also have concluded a compilation of an individual's criminal history is highly embarrassing information, the publication of which would be highly objectionable to a reasonable person, and is generally not of legitimate concern to the public. Cf. United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 764 (1989) (when considering prong regarding individual's privacy interest, court recognized distinction between public records found in courthouse files and local police stations and compiled summary of information and noted that individual has significant privacy interest in compilation of one's criminal history). We note information relating to routine traffic violations does not implicate privacy concerns. Cf. Gov't Code § 411.081(b).

We have marked medical, personal financial and criminal history information that is highly intimate or embarrassing and not a matter of legitimate public interest. The marked information must be withheld under section 552.101 of the Government Code in conjunction with common-law privacy. Although you seek to withhold other information on this basis, we conclude the remaining information at issue is not highly intimate or embarrassing and a matter of no legitimate public concern. Therefore, none of the remaining information may be withheld on privacy grounds under section 552.101.

Section 552.117(a)(2) of the Government Code excepts from disclosure the home address, home telephone number, emergency contact information, and social security number of a peace officer, as well as information that reveals whether the officer has family members, regardless of whether the officer complies with sections 552.024 or 552.1175 of the Government Code. See id. § 552.117(a)(2). Section 552.117(a)(2) adopts the definition of peace officer found at article 2.12 of the Code of Criminal Procedure. The information we have marked under section 552.117 of the Government Code must be withheld pursuant to section 552.117(a)(2) to the extent the marked information pertains to a peace officer as defined by article 2.12.

To the extent section 552.117(a)(2) is not applicable to the marked information, section 552.117(a)(1) of the Government Code excepts from disclosure the home address and telephone number, emergency contact information, social security number, and family member information of a current or former official or employee of a governmental body who requests this information be kept confidential under section 552.024 of the Government Code. See id. §§ 552.117(a)(1), .024. Whether a particular item of information is protected by section 552.117(a)(1) must be determined at the time of the governmental body's receipt of the request for the information. See Open Records Decision No. 530 at 5 (1989). Thus, information may only be withheld under section 552.117(a)(1) on behalf of a current or former official or employee who made a request for confidentiality under section 552.024 prior to the date of the governmental body's receipt of the request for the information. Information may not be withheld under section 552.117(a)(1) on behalf of a current or former official or employee who did not timely request confidentiality under section 552.024. Therefore, to the extent the information we have marked under section 552.117 of the Government Code is not protected by section 552.117(a)(2), the city must withhold the information under section 552.117(a)(1) to the extent the employee concerned timely requested confidentiality for the information under section 552.024 of the Government Code. Although you appear to claim section 552.117 for other submitted information, we conclude this exception does not encompass any of the remaining information at issue. Therefore, none of the remaining information may be withheld under section 552.117(a)(2) or section 552.117(a)(1).

In summary, the city must withhold (1) the "143.089(g)" information under section 552.101 of the Government Code in conjunction with section 143.089(g) of the Local Government Code; (2) the marked information acquired from a polygraph examination under section 552.101 in conjunction with section 1703.306 of the Occupations Code; (3) the marked medical, personal financial and criminal history information under section 552.101 in conjunction with common-law privacy; (4) the information we have marked under section 552.117 of the Government Code pursuant to section 552.117(a)(2) to the extent the marked information is related to a peace officer; and (5) the information we have marked under section 552.117 pursuant to section 552.117(a)(1) to the extent the employee concerned timely requested confidentiality for the marked information under section 552.024 of the Government Code. The rest of the responsive 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,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/bhf

Ref: ID# 466164

Enc: Submitted information

c: Requestor

(w/o enclosures)

Footnotes

1. Section 552.130(c) of the Government Code authorizes a governmental body to redact the information described in subsections 552.130(a)(1) and (a)(3) without the necessity of requesting a decision from this office. See Gov't Code § 552.130(c); see also id. § 552.130(d)-(e) (requestor may appeal governmental body's decision to withhold information under section 552.130(c) to attorney general, and governmental body withholding information pursuant to section 552.130(c) must provide notice to requestor). Section 552.147(b) authorizes a governmental body to redact a living person's social security number from public release without requesting a decision. Open Records Decision No. 684 authorizes all governmental bodies to withhold a Texas license plate number under section 552.130 of the Government Code without requesting a decision. Open Records Letter Nos. 2006-14726 and 2007-00198 authorize the city to withhold information encompassed by section 552.130 without requesting a decision.

2. We note 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).

3. You state the city is a civil service municipality under chapter 143 of the Local Government Code.

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