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February 22, 2000

Mr. James L. Hall
Assistant General Counsel
Texas Department of Criminal Justice
P.O. Box 4004
Huntsville, Texas 77342

OR2000-0635

Dear Mr. Hall:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 132248.

The Texas Department of Criminal Justice (the "department") received a request from a former employee for all documents pertaining to him, including documents, statements and files pertaining to his personal disciplinary history and to internal affairs, shift files, and administrative investigations. You have submitted what you describe as being four "exemplars" of responsive information for our review.(1) You state that they include a "Use of Force Investigation Report," a "Major Use of Force Investigation Report," a "Criminal Investigation Report," and information relating to an investigation of alleged sexual harassment. You represent that any statements made by the requestor that are contained in the three investigation reports will be made available to him. You claim that the balance of the requested information is excepted from public disclosure under sections 552.101, 552.107, 552.108 and 552.131 of the Government Code. We have considered the exceptions you claim and have reviewed the information you submitted.

As section 552.131 is the most generally applicable exception you raise, we will consider it first. Section 552.131 and its companion provision, section 552.029, were added to chapter 552 of the Government Code by the Seventy-sixth Legislature. See Act of May 26, 1999, 76th Leg., R.S., ch. 783, 1, 2, 1999 Tex. Gen. Laws 3407, 3407-08. Except as otherwise specifically provided by section 552.131(b) or section 552.029, section 552.131 excepts from public disclosure information obtained or maintained by the department "if it is information about an inmate who is confined in a facility operated by or under a contract with the department." Gov't Code 552.131(a). The submitted information is not within the ambit of section 552.131(b). Basic information regarding an incident involving the use of force or an alleged crime involving an inmate must be released in accordance with section 552.029(8). This office has determined that basic information, for the purposes of section 552.029(8), includes the time and place of the incident, names of inmates and department officials directly involved in the incident, a brief narrative of the incident, a brief description of any injuries sustained, and information regarding criminal charges or disciplinary actions filed as a result of the incident. We therefore conclude that basic information regarding the relevant use of force and criminal investigations must be released, pursuant to section 552.029(8), and that the department must withhold the rest of the requested information relating to use of force and criminal investigations pursuant to section 552.131.(2)

The other information at issue relates to an investigation of alleged sexual harassment. You raise section 552.101, which protects information deemed confidential by law, including judicial decisions, in conjunction with Morales v. Ellen, 840 S.W.2d 519 (Tex. App. - El Paso 1992, writ denied). In Ellen, the court of appeals applied the common law privacy principles discussed in Industrial Foundation v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977), to an investigation of allegations of sexual harassment. The investigation files in Ellen contained third-party witness statements, an affidavit in which the individual accused of the misconduct responded to the allegations, and conclusions of the board of inquiry that conducted the investigation. Ellen, 840 S.W.2d at 525. The court upheld the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the disclosure of such documents sufficiently served the public's interest in the matter. Id. The Ellen court also held, however, that "the public does not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id. Based on Ellen, this office has held that a governmental body must withhold both the identities of alleged victims of and witnesses to alleged sexual harassment and any information that would tend to identify such a victim or witness. Open Records Decision Nos. 393 (1983), 339 (1982). We believe that the report which summarizes the department's internal affairs investigation is analogous to the summary whose release was ordered in Ellen and that its disclosure satisfies the legitimate public interest in this matter. We have marked the document that must be released. We note, however, that the identities of the alleged victim and of witnesses other than the person accused are protected by the common law right of privacy and must be redacted from the information that is released. The identity of the accused is not protected, as the common law right of privacy does not protect information about a public employee's alleged misconduct on the job or complaints made about the employee's performance. See Open Records Decision Nos. 438 (1986), 230 (1979), 219 (1978). We have bracketed the information that the department must not disclose.(3)

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 requestor 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,

James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ch

Ref: ID# 132248

Encl. Submitted documents

cc: Mr. Dennis Torres, Jr.
P.O. Box 2041
Bloomington, Texas 77951
(w/o enclosures)


 

Footnotes

1. In reaching the conclusions set forth in this letter ruling, we assume that the "exemplars" you submitted are representative samples of the requested information as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This letter ruling does not reach, and therefore does not authorize the department to withhold, any requested information that differs substantially from the information submitted to this office for review.

2. This ruling is limited to the application of sections 552.131 and 552.029 to the information contained in the submitted use of force and criminal investigation reports, including statements made by the requestor. This ruling does not consider the applicability and effect of the Final Judgment in the case of Ruiz v. Collins, No. H-78-987 (S. D. Tex., filed Dec. 11, 1992), to the information at issue. However, we note that Ruiz is still in effect and that it prohibits the release of certain "sensitive information," which may include information required to be released under section 552.029 or other law. We remind you that section 552.107(2) of the Government Code requires you to withhold information that is made confidential by court order, and that section 552.352 prescribes criminal penalties for the disclosure of confidential information.

3. The document that must be released under Ellen also contains information that is protected by section 552.117 of the Government Code. Section 552.117 excepts from public disclosure information that relates to the home address, home telephone number or social security number of an employee of the department or that reveals whether such an employee has family members, regardless of whether the employee complied with section 552.024 of the Government Code. See Gov't Code 552.117(3). Accordingly, social security numbers encompassed by section 552.117 must not be disclosed. The requestor has a special right of access, however, to information about himself that is otherwise encompassed by section 552.117(3). See Gov't Code 552.023(a). We also have marked the information that the department must withhold under section 552.117(3).
 

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