                                         September 7,ZOOO


The Honorable Ken Annbrister                      Opinion No. JC-0283
Chair, Committee on Criminal Justice
Texas State Senate                                Re: Whether information made confidential by
P.O. Box 12068                                    subsection 143.089(g) of the Local Government
Austin, Texas 78711                               Code may be released to the city manager and the
                                                  city attorney (RQ-0226-E)

Dear Senator Armbrister:

       You have requested our opinion as to whether information made confidential by subsection
143.089(g) ofthe Local Government Code may be released to the city manager and the city attorney.
We conclude that it may be released to those individuals upon approval of the governing body of the
municipality.

        Chapter 143 of the Local Government Code authorizes a municipality with a population of
10,000 or more, and a salaried fire and police department, to hold an election to adopt a “fire
fighters’ and police officers’ civil service law.” TEX. Lot. GOV’T CODE ANN. $5 143.002, ,004
(Vernon 1999). If the law is adopted, “the Fire Fighters’ and Police Officers’ Civil Service
Commission [the “Commission”] is established in the municipality.” Id. 5 143.006(a). The
Commission is composed of “three members appointed by the municipality’s chief executive and
confirmed by the governing body of the municipality.” Id. 5 143.006(b). The Commission is
required to appoint a “director” under subsection 143.012(a).

        The Commission is the “custodian of police personnel files for general purposes.” City of
San Antonio Y. Texas Attorney General, 85 1 S.W.2d 946,948 (Tex. App.-Austin 1993, writ denied).
Section 143.089 requires the director of the Commission to “maintain a persomrel file on each fire
tighter and police officer.” TEX. Lot. GOV’TCODEANN. 8 143.089(a) (Vernon 1999). The tile must
contain certain specified items. Id. The individual officer is entitled to respond to certain kinds of
negative information that are placed in his personnel file, id. 5 143.089(d), and such information
must be removed if it is found not to be supported by sufficient evidence. Id. 5 143.089(c). The
contents of a personnel file held by the Commission may not be disclosed without the individual’s
written consent “unless the release of the information is required by law.” Id. 5 143.089(f). As the
court in City of San Antonio, sup-a, declared:

               Subsections (a)-(f) of section 143.089 are important for present
               purposes because (1) they mandate the keeping of a personnel file on
               each police officer or tire tighter; (2) they designate the director of
The Honorable Ken Annbrister - Page 2            (X-0283)




               the civil-service commission as the officer authorized to make
               disclosure decisions, under the Act, regarding those files; (3) they
               declare a legislative policy decision against disclosure of unsub-
               stantiated claims of misconduct made against police officers and tire
               fighters, except with an individual’s written consent; and (4) they
               establish an adjudicatory process to effectuate that policy decision.
               These provisions illumine and buttress the legislative intent reflected
               in the plain words of subsection (g) of section 143.089.

City of San Antonio, 85 1 S. W.2d at 949.

       Subsection (g) of section 143.089 provides:

                   A tire or police department may maintain a personnel file on a fire
               tighter or police officer employed by the department for the
               department’s use, but the department may not release any
               information contained in the departmentfile to any agency orperson
               requesting information reLating to ajirefighter orpolice 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
               tire tighter’s or police officer’s personnel file.

TEX. Lot. GOV’T CODEANN. 5 143.089(g) (Vernon 1999) (emphasis added). “Subsection (g)
authorizes but does not require City tire and police departments to maintain for their use a separate
and independent personnel file on a police officer or fire fighter.” City of San Antonio, 85 1 S.W.2d
at 949. In the words of Open Records Decision No. 562, “subsection (g) may be reasonably
construed to permit a police or tire department to maintain personnel files on its employees and
offkers that contain more and different information than appears in the civil service personnel tiles
for the same employees.” Tex. Att’y Gen. ORD-562 (1990) at 7. Information contained in the
subsection (g) tile is “confidential by law” under the Public Information Act, section 552.101 of the
Government Code. See City of San Antonio, 85 1 S.W.2d at 949.

         Subsection (g) specifically states that the fire or police department “may not release any
information contained in the department tile to any agency or person requesting information relating
to a fire tighter or police officer.” TEX.Lot. GOV’TCODEANN. $ 143.089(g) (Vernon 1999). The
bill analysis for Senate Bill 279 which added subsection(g) states that, under its terms, “[a] tire or
police department.       may not release [personnel records] to anyperson outside of the department.”
SENATECOMM. ON URBANAFFAIRS,BILL ANALYSIS,Tex. S.B. 279, 70th Leg., R.S. (1987)
(emphasis added). On the other hand, the fire and police chiefs, unless elected, are “appointed by
the municipality’s chief executive and confirmed by the municipality’s governing body.” TEX.LOC.
GOV’TCODEANN. § 143.013(a)(l) (Vernon 1999). Thus, in one sense, the chiefexecutive and the
members of the governing body, and any other individual in the chain of command between the fire
and police chief and the chief executive, are not persons “outside the department.” They are the
The Honorable Ken Armbrister - Page 3               (X-0283)




supervisors of the department. Furthermore, the Supreme Court of Texas has long recognized that
“legislative bodies of cities do have residual control over civil service employment other than those
controls that are specifically defined in the Civil Service Act itself.” City of Sweetwater v. Geron,
380 S.W.2d 550, 553 (Tex. 1964). As the Supreme Court said in Glass v. Smith, quoting a
Wisconsin case, “[tlhe fact that the commission (Civil Service Commission) is authorized by statute
to make rules does not authorize it to divest the city council of its legal rights as governing body of
the city.” Glass v. Smith, 244 S.W.2d 645,652 (Tex. 1951). In our opinion, therefore, subsection
(g) should not be read to include the municipality’s chief executive and members of its governing
body within the ambit of those “persons or agencies” from whom the subsection (g) tile must be
withheld. This construction is consistent with well-established doctrine.

          In Attorney General Opinion JC-0 120, we considered whether a city council could provide
its members access to a tape recording of an executive session ofthe council. Just as the subsection
(g) file in the situation youposeconstitutes information made confidential by law, so too did the tape
recording of the executive session considered in JC-0120. But in neither case does release to
the governing body of the municipality constitute a release to the public. Tex. Att’y Gen. Op. No.
JC-0120 (1999) at 2. Attorney General Opinion JC-0120 concluded that a city council member was
entitled to review the tape recording of an executive session, even one that he did not attend. The
opinion relied in part on a prior ruling of the attorney general, Attorney General Opinion JM-119,
which had said that, “when a trustee of a community college district, acting in his official capacity,
requests information maintained by the district, he is not a member of the ‘public’ for purposes of
the Open Records Act.” Tex. Att’y Gen. Op. No. JM-119 (1983) at 2. The opinion continued:
“Since       the board of trustees” is responsible for maintaining the records of the college district, “it
logically follows that a member ofthat board has an inherent right of access to such records, at least
when he requests them in his official capacity.        Without complete access to district records, such
trustee could not effectively perform his duties.” Id. at 3.

        Attorney General Opinion JC-0120 noted that opinions subsequent to JM-119 had approved
the principle set forth therein. See, e.g., Tex. Att’y Gen. LO-93-069, LO-88-103. In particular,
Letter Opinion 93-069 concluded that “members of the governing body of a state or local
governmental entity have an inherent right to examine the records ofthe governmental entity ifthey
request access to the records in their official capacity.” Tex. Any Gen. LO-93-069, at 3. Attorney
General Opinion JC-0120 also relied on a 1967 New York case that declared it “axiomatic that a
trustee of a municipal corporation, having the ultimate responsibility over the affairs of the
corporation, has an absolute right to inspect the records maintained by that corporation.” Gorton v.
Dow,282N.Y.S.2d841,842(N.Y.           Sup.Ct. 1967);seealsoKingv.   Ambellan, 173N.Y.S.2d98,lOO
(NY. Sup. Ct. 1958).

        In our view, these cases and opinions are equally applicable to the situation you present.
“Without complete access” to the subsection (g) file, the chief executive and members of the
governing body may be unable to “effectively perform” their duties. Without the independent
oversight of their supervisors, the fire and police departments might come to function as completely
independent arms of the municipality. As you indicate in your brief, the chief executive and his
The Honorable Ken Armbrister - Page 4             (X-0283)




designees, such as the city manager, would in such case have no means of evaluating the
performance of either the police chief or the fire chief. Citizens’ complaints might go unheeded, and
the supervisors would have no means of correcting, or even confirming, potential violations within
the departments.

         All these factors support the conclusion that the chief executive and the governing body of
a municipality, who appoint the heads of the police and tire departments - the custodians of the
subsection (g) tile - have an inherent right, in their official capacities, to examine the records
contained in that tile. As such, they may designate those individuals, including the city manager and
the city attorney, who shall have access to the file. It is therefore our opinion that information made
confidential by subsection 143.089(g) of the Local Government Code may be released to the city
manager and the city attorney upon approval of the chief executive and governing body of the
municipality. Of course, distribution of such information to unauthorized persons is a criminal
offense, and “constitutes official misconduct.” TEX.GOV’TCODEANN.4 552.352 (Vernon 1994).
The Honorable Ken Armbrister - Page 5         (X-0283)




                                     SUMMARY

                      Information made confidential by subsection 143.089(g) of
              the Texas Local Government Code may be released to the city
              manager and the city attorney with the consent of the governing body
              of the municipality.




                                            Attorney General of Texas


ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
