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February 28, 2000

Mr. Jerry Bruce Cain
Assistant City Attorney
City of Laredo
P.O. Box 579
Laredo, Texas 78042-0579

OR2000-0726

Dear Mr. Cain:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 132446.

The City of Laredo (the "city") received a request for certain records, encompassing the period "from 1996 to the present," including (1) field training officers' records including but not limited to cadet (police) evaluations, (2) internal affairs control logs, and (3) background investigations conducted on police cadets. You state that you have submitted representative samples of the responsive field training officers' records and background investigations and all of the requested internal affairs control logs.(1) You claim that the requested information is excepted from disclosure under section 143.089 of the Local Government Code. We have considered the exception you claim and have reviewed the information you submitted.

Section 552.101 of the Government Code protects from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Thus, section 552.101 encompasses information that is protected by other statutes, such as section 143.089 of the Local Government Code.(2) In a municipality where it is applicable, section 143.089 contemplates the creation and maintenance of two different types of personnel files by a police department, including one that must be maintained as part of a police officer's civil service file and another that the department may maintain for its own internal use. Local Gov't Code 143.089(a), (g). The civil service file must contain certain specified items, including commendations, periodic evaluations by the officer's supervisor, and documents relating to any misconduct in any instance where the police department took disciplinary action against a police officer. Local Gov't Code 143.089(a). Documents relating to alleged misconduct or disciplinary action must be removed from the civil service file, however, if the police department determines that the charge of misconduct was not supported by sufficient evidence or that the disciplinary action was taken without just cause. Local Gov't Code 143.089(b), (c). Thus, subsections (a)-(c) of section 143.089 limit the contents of the civil service file.

Subsection (g) of section 143.089 authorizes but does not require the police department to maintain, for its own use, a separate and independent internal departmental personnel file relating to a police officer. Section 143.089(g) provides:

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.

Local Gov't Code 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 the applicability of section 143.089(g) to a request for information contained in a police officer's personnel file maintained by the city police department for its own use. The records included in the departmental file related to complaints against the police officer for which no disciplinary action was taken. The court determined that section 143.089(g) made records contained in the departmental file confidential. See City of San Antonio, 851 S.W.2d at 949 (concluding that "the legislature intended to deem confidential the information maintained by the . . . police department for its own use under subsection (g)"). The court stated that the provisions of section 143.089 governing the contents of the civil service file reflect "a legislative policy against disclosure of unsubstantiated claims of misconduct made against police officers and fire fighters, except with an individual's written consent." Id. Thus, in those instances in which a police department takes disciplinary action against a police officer, section 143.089(a)(2) requires that such records relating to the investigation and disciplinary action be placed in the personnel files maintained under section 143.089(a). The documents encompassed by section 143.089(a) are subject to public disclosure under chapter 552 of the Government Code, unless some exception to disclosure is applicable. See Local Gov't Code 143.089(f); City of San Antonio, 851 S.W.2d 948-49; Open Records Decision No. 562 at 6 (1990). Section 143.089(g) provides that a police department that receives a request for information relating to a police officer "may not release any information contained in the department file" maintained under section 143.089(g) and must "refer to the director [of the civil service commission] a person or agency that requests information that is maintained in the . . . police officer's personnel file." See also City of San Antonio, 851 S.W.2d at 949.

You state that "the requested records, being personnel records maintained by the Chief of Police of the City of Laredo, are deemed confidential and are exempt from disclosure" under section 143.089(g). Relying on City of San Antonio, you further assert:

[T]he duty of the Laredo Civil Service Commission to maintain such records exists only in cases where disciplinary action has been taken against the officer. Since these enclosed records do not involve disciplinary action, I am told by the Chief of Police that the requested records were not filed with the Laredo Civil Service Commission. Therefore, no referral is necessary.

To the extent that you assert that the requested records are confidential because they are contained in a departmental personnel file maintained by the police department under section 143.089(g) of the Local Government Code, we concur. We note, however, that the civil service personnel file that must be maintained under section 143.089(a) is not confined to records relating to disciplinary matters and that section 143.089(g) provides that the police department "must" refer to the civil service director a request for information that is contained in an officer's departmental personnel file. Moreover, it appears to this office that some of the submitted internal affairs records may relate to misconduct that resulted in disciplinary action by the department. Section 143.089(a) provides in relevant part that the civil service "personnel file must contain any . . . document relating to . . . any misconduct by the . . . police officer if the . . . document is from the employing department and if the misconduct resulted in disciplinary action by the employing department in accordance with this chapter[.]" Local Gov't Code 143.089(a)(2). To the extent that the requested records include any document that is within the purview of section 143.089(a)(2), we believe that the police department is required to refer the requestor to the director of the civil service commission in accordance with section 143.089(g). See City of San Antonio, 851 S.W.2d at 948. The information in question does not otherwise appear to include any records that are within the ambit of section 143.089(a), and to that extent we agree that no referral is necessary. In all events, we agree that requested records contained in the police department's own personnel files, including the field training officers' logs, internal affairs control logs and background investigations conducted on police cadets, are confidential under section 552.101 of the Government Code in conjunction with section 143.089(g) of the Local Government Code and must not be released by the department.

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# 132446

Encl. Submitted documents

cc: Mr. Hector Farias, Jr.
Voices in Democratic Action
P.O. Box 243
Laredo, Texas 78042
(w/o enclosures)


 

Footnotes

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

2. Based on your claim under section 143.089, we understand the city to be a civil service city under chapter 143 of the Local Government Code.
 

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