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August 7, 2000

Ms. Lan P. Nguyen
Assistant City Attorney
City of Houston
P O Box 1562
Houston, Texas 77251-1562

OR2000-2965

Dear Mrs. Nguyen:

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# 137839.

The City of Houston (the "city") received a request for a copy of the Houston Police Department's internal affairs investigation report regarding a specified claim. You argue that the requested information is excepted from disclosure under sections 552.101, 552.103, and 552.108 of the Government Code. You have submitted the responsive information for our review. We have considered the exceptions you claim and reviewed the submitted information.

You contend that the investigation report is confidential under section 552.101 of the Government Code in conjunction with section 143.1214 of the Local Government Code.(1) Chapter 143 of the Local Government Code encompasses civil service rules for municipal fire and police departments. Subchapter G of chapter 143 is applicable to a municipality with a population of 1.5 million or more, including the City of Houston. Subchapter G includes section 143.1214 of the Local Government Code, which provides in relevant part:

(b) The [police] department shall maintain an investigatory document that relates to a disciplinary action against a . . . police officer that was overturned on appeal, or any document in the possession of the department that relates to a charge of misconduct against a . . . police officer that the department did not sustain, only in a file created by the department for the department's use. The department may not release those documents to any agency or other person except another law enforcement agency[.]

Local Gov't Code 143.1214(b). You inform this office that the submitted information consists of an investigative report prepared by the Internal Affairs Division ("IAD") of the Houston Police Department following the shooting death of a robbery suspect by certain Houston police officers. You explain that an internal investigation into the incident revealed that the shooting was "accidental and intentional/justified," and, therefore, did not result in disciplinary actions against the police officers. Based on your representations and our review of the IAD report, we conclude that it is confidential under section 143.1214 of the Local Government Code and, therefore, not subject to release under section 552.022(a)(1) of the Government Code.(2) See also Open Records Decision No. 642 (1996) (applying section 143.1214 to files relating to investigations of City of Houston Fire Department personnel by Public Integrity Review Group).(3) Thus, you must withhold the submitted information.

In summary, you must withhold the IAD investigation report pursuant to Government Code section 552.101 in conjunction with Local Government Code section 143.1214. As section 552.101 is dispositive, we need not address your remaining claimed exceptions.

This letter ruling is limited to the particular records at issue in this request and 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,

Julie Reagan Watson
Assistant Attorney General
Open Records Division

JRW/pr

Ref: ID# 137839

Encl. Submitted documents

cc: Mr. Ken E. Harper
Law Offices of Ken E. Harper
5100 Westheimer, Suite 134
Houston, Texas 77058
(w/o enclosures)


 

Footnotes

1. Section 552.101 excepts from disclosure information that is considered to be confidential by law, including a statute. As a general rule, statutory confidentiality under section 552.101 requires express language making certain information confidential or stating that information shall not be released to the public. See Open Records Decision No. 478 at 2 (1987).

2. Government Code section 552.022(a)(1) provides that, except as provided by section 552.108, a completed report, audit, evaluation, or investigation made of, for, or by a governmental body is public information and not excepted from required disclosure under chapter 552 unless they are expressly confidential under other law.

3. We note that the submitted Internal Affairs Division investigation report includes related offense reports and other information. A record that was not created in the course of the IAD investigation is not made confidential by its inclusion in a file that is subject to section 143.1214 of the Local Government Code. Thus, if these records exist elsewhere, outside of the section 143.1214 file, they would be subject to disclosure under the Public Information Act. See Gov't Code 552.006, 552.022.
 

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