Office of the ATTORNEY GENERAL
December 18, 2002
Mr. Gordon Bowman
Dear Mr. Bowman:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID#173845.
The Travis County Sheriff's Office ("TCSO") received a request for internal affairs file number 2002-84. You assert that the requested information is excepted from disclosure based on sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.
Initially, we note that the submitted information is subject to section 552.022 of the Government Code. Section 552.022 provides in part that
the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:
(1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108[.]
Gov't Code § 552.022(a)(1). In this instance, the submitted internal affairs file constitutes a completed investigation made by the TCSO. Therefore, the TCSO must release this information under section 552.022(a)(1), unless it is excepted from disclosure under section 552.108 or expressly confidential under other law. In addition to section 552.108, you also raise section 552.101 which is considered "other law" for the purpose of section 552.022. Therefore, we will consider your arguments only under sections 552.101 and 552.108.
Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," including information protected by the common law right of privacy. The doctrine of common law privacy protects information if it is highly intimate or embarrassing such that its release would be highly objectionable to a reasonable person and the public has no legitimate interest in it. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). This office has stated in numerous formal decisions that there is a legitimate public interest in how a public employee conducts himself while on-duty and how he performs his job functions. See Open Records Decision Nos. 484 (1987) (public's interest in knowing how police departments resolve complaints against police officers ordinarily outweighs officers' privacy interest), 470 at 4 (1987) (public has legitimate interest in job performance of public employees), 455 (1987) (public employee's job performances or abilities generally not protected by privacy), 423 at 2 (1984) (scope of public employee privacy is narrow), 329 (1982) (reasons for an employee's resignation are not ordinarily excepted by constitutional or common-law privacy), 444 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employees). Thus, we conclude that the submitted information does not contain information that may be withheld under common-law privacy and section 552.101.
Section 552.108, the "law enforcement exception," provides in relevant part:
(a) Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from the requirements of 552.021 if:
. . .
(2) it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.]
(b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from the [required public disclosure] if:
. . .
(2) the internal record or notation relates to law enforcement only in relation to an investigation that did not result in a conviction or deferred adjudication[.]
Gov't Code § 552.108(a)(2), (b)(2). A governmental body that raises section 552.108 must reasonably explain how and why section 552.108 is applicable to that information. See id. § 552.301(e)(1)(A); Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977); Open Records Decision No. 434 at 2-3 (1986). Section 552.108(a)(2) and (b)(2) protect information relating to a concluded criminal investigation that did not result in a conviction or deferred adjudication.
Because internal affairs investigations are administrative, as opposed to criminal, in nature, section 552.108 is inapplicable to such investigations. See Morales v. Ellen, 840 S.W.2d 519, 526 (Tex. App.--El Paso 1992, writ denied) (predecessor statute to section 552.108 not applicable where no criminal investigation resulted). You represent to this office that the submitted information relates to allegations of illegal and inappropriate conduct while on duty that were investigated and closed without further action due to the lack of credibility of a confidential informant. You do not inform us, however, and it does not otherwise appear to this office that the submitted information relates to a criminal investigation by the TCSO. We therefore conclude that the TCSO has not demonstrated that the submitted information is excepted from disclosure under section 552.108. See Gov't Code § 552.108(a)(2), (b)(2); see also Morales v. Ellen, 840 S.W.2d 519, 525-26 (Tex. Civ. App.--El Paso 1992, writ denied) (stating that statutory predecessor to section 552.108 was not applicable where no criminal investigation or prosecution of police officer resulted from internal affairs investigation); Open Records Decision No. 350 (1982) (stating that statutory predecessor was not applicable to internal affairs investigation file when no criminal charge against police officer results from investigation). As the information at issue was not created in conjunction with a criminal investigation, the TCSO may not withhold any of the submitted information pursuant to section 552.108.
You also claim that portions of the internal affairs file contain information made confidential by the informer's privilege. The common law informer's privilege, incorporated into the Public Information Act (the "Act") by section 552.101 of the Government Code, has long been recognized by Texas courts. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969); see also Hawthorne v. State, 10 S.W.2d 724, 725 (Tex. Crim. App. 1928); Roviaro v. United States, 353 U.S. 53, 59 (1957). The informer's privilege under Roviaro exists to protect a governmental body's interest. Thus, it may be waived by a governmental body and is not 'other law' that makes information confidential under section 552.022. See Open Records Decision No. 549 at 6 (1990). But in In re The City of Georgetown, 53 S.W.3rd 328 at 337 (Tex. 2001), the Texas Supreme Court held that "[t]he Texas Rules of Civil Procedure and Texas Rules of Evidence are 'other law' within the meaning of section 552.022." Rule 508 of the Texas Rules of Evidence provides, in relevant part:
(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished, except the privilege shall not be allowed in criminal cases if the state objects.
Thus, an informer's identity is confidential under Rule 508 if a governmental body demonstrates that an individual has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation, and the information does not fall within the purview of the exceptions to the privilege enumerated in Rule 508(c). Here, although the only individual who furnished information relating to or assisting in an investigation of a possible violation of a law is not identified by name, there are details within the interview statement that contain information from which the identity of the informant may be determined by the accused officer. Therefore, we have marked the portions of the interview statement that must be withheld under Rule 508 of the Texas Rules of Evidence.
In sum, the submitted internal affairs file is subject to section 552.022(a)(1) of the Government Code and may not be withheld under the informer's privilege under the common law, under section 552.101, or under section 552.108. You must, however, withhold the information we have marked under Rule 508 of the Texas Rules of Evidence.
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).
Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the Texas Building and Procurement Commission at 512/475-2497.
If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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.
Heather Pendleton Ross
c: Mr. Donald Craig Smith
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US