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January 27, 2000

Mr. Dan T. Saluri
Assistant City Attorney
City of Lubbock
916 Texas Avenue
P.O. Box 2000
Lubbock, Texas 79457

OR2000-0267

Dear Mr. Saluri:

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# 131832.

The City of Lubbock (the "city") received a request for the number of complaints filed against a named city policeman, a copy of the city's policy on transporting prisoners, and "all training records for [the named policeman] that you can supply me with, or a point of contact that would be able to do so." You seek to withhold portions of the information responsive to the request under sections 552.101 and 552.108 of the Government Code.

Section 552.101 requires withholding, inter alia, information made confidential by statute. You assert that the requested number of complaints against the officer is confidential pursuant to section 143.089 of the Local Government Code. Section 143.089 of the Local Government Code provides for the maintenance of a police personnel file and provides what may be kept in that file:

(a) The director [of the fire fighters' and police officers' civil service] or the director's designee shall maintain a personnel file on each fire fighter and police officer. The personnel file must contain any letter, memorandum, or document relating to:

(1) a commendation, congratulation, or honor bestowed on the fire fighter or police officer by a member of the public or by the employing department for an action, duty, or activity that relates to the person's official duties;

(2) any misconduct by the fire fighter or the police officer if the letter, memorandum, or document is from the employing department and if the misconduct resulted in disciplinary action by the employing department in accordance with this chapter; and

(3) the periodic evaluation of the fire fighter or police officer by a supervisor.

(b) A letter, memorandum, or document relating to alleged misconduct by the fire fighter or police officer may not be placed in the person's personnel file if the employing department determines that there is insufficient evidence to sustain the charge of misconduct.

(c) A letter, memorandum, or document relating to disciplinary action taken against the fire fighter or police officer or to alleged misconduct by the fire fighter or police officer that is placed in the person's personnel file as provided by Subsection (a)(2) shall be removed from the employee's file if the commission finds that:

(1) the disciplinary action was taken without just cause; or

(2) the charge of misconduct was not supported by sufficient evidence.

(d) If a negative letter, memorandum, document, or other notation of negative impact is included in a fire fighter's or police officer's personnel file, the director or the director's designee shall, within 30 days after the date of the inclusion, notify the affected fire fighter or police officer. The fire fighter or police officer may, on or before the 15th day after the date of receipt of the notification, file a written response to the negative letter, memorandum, document, or other notation.

(e) The fire fighter or police officer is entitled, on request, to a copy of any letter, memorandum, or document placed in the person's personnel file. The municipality may charge the fire fighter or police officer a reasonable fee not to exceed actual cost for any copies provided under this subsection.

(f) The director or the director's designee may not release any information contained in a fire fighter's or police officer's personnel file without first obtaining the person's written permission, unless the release of the information is required by law.

(g) 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. (Emphasis added.)

Local Gov't Code 143.089.

You advise that the complaints in question have not resulted in disciplinary action against the officer. Thus, subsections (b) and (c) of section 143.089 prohibit such information from being placed in the personnel file. Rather, such information may be maintained in a police department's internal file, as provided in section 143.089(g).

The court in City of San Antonio v. Texas Attorney General, 851 S.W.2d 946 (Tex. App.--Austin 1993, writ denied), addressed the availability of information that is contained in the department's internal file pursuant to section 143.089(g). The court determined that section 143.089(g) makes confidential any records kept in a department's internal file. Thus, based on your representations, information as to how many complaints have been made against the officer is, in this case, made confidential by section 143.089(g) in conjunction with the San Antonio case. Such information must, therefore, be withheld.

You claim the protection of section 552.108, the law enforcement exception, for the requested city policy on transporting prisoners. You advise that this office ruled on a section 552.108 claim by the city with respect to that information in Open Records Letter No. 99-1012 (1999). You may follow that ruling in responding to the present request for the city policy on transporting prisoners.

With respect to the item of the request seeking "all training records for this officer that you can supply me with, or a point of contact that would be able to do so," you claim that release of the information would interfere with law enforcement such that the information may be withheld under section 552.108. Alternatively, you contend that you have satisfied this part of the request by providing the requestor with the name of a person to contact. You represent that "[t]he contact person will work with the requestor to formulate a request that is narrower in scope and that identifies the records wanted."

The city has not supplied the requestor with a contact person who will be able to supply him with all the requested training records. In our view, the city's furnishing the name of a contact person "to work with the requestor"does not satisfy this third item of the request. Thus, in our view, the city is obliged to respond to the request for the training records. However, to date you have not submitted the training records responsive to this part of the request, or representative samples thereof, to this office. Section 552.301(e)(1)(D) requires that a governmental body seeking an attorney general decision under the act submit the records at issue within fifteen business days of receiving the request. Section 552.302 provides that if a governmental body fails to comply with the requirements of section 552.301, it must release the information in question unless there is a "compelling reason" for withholding it. A "compelling reason" for withholding information under the act generally would be that the information is confidential by law or affects third party interests. See e.g. Open Records Decision No. 150 (1977). Your section 552.108 claim with respect to the training information at issue does not show a compelling reason for withholding the information. Therefore, the requested training information must be released.

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 ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestr and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

William Walker
Assistant Attorney General
Open Records Division

WMW/ljp

Ref: ID# 131832

Encl. Submitted documents

cc: Mr. Moises Villa
1001 University Avenue, Unit 213
Lubbock, Texas 79401
(w/o enclosures)


 

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