      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-02-00785-CV



                      Greg Abbott, Attorney General of Texas, Appellant

                                                  v.

                                 City of Corpus Christi, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
        NO. GV102410, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



                                           OPINION


               In this declaratory-judgment action, the City of Corpus Christi (“the City”) obtained

summary judgment against the Attorney General declaring that certain information kept by the City

police department is confidential by law and therefore not subject to compelled disclosure under the

Texas Public Information Act (TPIA). See Tex. Gov’t Code Ann. § 552.101 (West 1994). The

Attorney General appeals, contending in a single issue that the district court misconstrued a statute

that required the information to be placed in a civil service personnel file and therefore made subject

to disclosure. We will reverse and render judgment in favor of the Attorney General.


                                         BACKGROUND

               The City is required to have a Fire Fighters’ and Police Officers’ Civil Service

Commission (“the commission”), which exercises various powers over personnel practices within
the City fire and police departments. See Tex. Loc. Gov’t Code Ann. §§ 143.001, .002, .006 (West

1999). The commission is the custodian of fire and police department personnel files for general

purposes, which includes compliance with the TPIA. See generally id. § 143.089 (West 1999).

Section 143.089 contemplates two types of personnel files.1 City of San Antonio v. Texas Att’y Gen.,

851 S.W.2d 946, 947 (Tex. App.—Austin 1993, writ denied). The first type of file is described in

subsections (a) through (f) of section 143.089.

                These subsections provide that the director of the commission must maintain a

personnel file for each police officer and fire fighter, which must contain certain specified items,

including any letter, memorandum, or document relating to “any misconduct by the fire fighter or

police officer if the letter, memorandum, or document is from the employing department and if the

misconduct resulted in disciplinary action by the employing department in accordance with this

chapter . . . .” Tex. Loc. Gov’t Code Ann. § 143.089(a)(2). A document alleging misconduct may

not be placed in the personnel file if there is insufficient evidence to support the allegation. Id.

§ 143.089(b). The document must be removed from the individual’s file if the commission finds the

disciplinary action was taken without just cause or the charge of misconduct was not supported by

sufficient evidence. Id. § 143.089(c). When documents relating to any misconduct enter an

individual’s personnel file, the director must notify the police officer or fire fighter within thirty

days, and he or she may respond to the document within fifteen days. Id. § 143.089(d). The contents




        1
           We will refer to the first type of file as the personnel file, the civil-service personnel file,
or the subsection (a) file, depending on the context in which the file is being discussed. We will
refer to the second type of file as either the department’s personnel file or the subsection (g) file.

                                                    2
of an individual’s personnel file may not be disclosed without the individual’s written consent

“unless the release of the information is required by law.” Id. § 143.089(f).

               The second type of file is described in subsection (g) of section 143.089, and its terms

are permissive. City of San Antonio, 851 S.W.2d at 949. Subsection (g) authorizes, but does not

require, City fire and police departments to maintain for their use “a separate and independent

personnel file on a police officer or fire fighter.” Tex. Loc. Gov’t Code Ann. § 143.089(g).

Subsection (g) also regulates the keeping of these files, providing that “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”; rather, the “department shall refer to the

director [of the civil service commission] 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.” Id.

               The facts of this case are undisputed. In May 2001, the City police department

received two requests for public information, including copies of “all documents regarding

complaints about Corpus Christi Police Department and/or officers” and “all complaints made

regarding any Corpus Christi Police Officer.” The City requested an open records decision from the

Attorney General, see Tex. Gov’t Code Ann. § 552.301(a) (West Supp. 2003), taking the position

that some of the requested information was exempted from disclosure. The City submitted to the

Attorney General exemplars of this information in the form of exhibits. As to Exhibit M, the City

argued that it was confidential by law because the police department had filed it as confidential

personnel information under section 143.089(g) of the local government code.2 See Tex. Loc. Gov’t


       2
          Exhibit M consists of a single report on an officer-misconduct investigation. The
investigation resulted in disciplinary action. The report has a table of contents. Its contents are

                                                  3
Code Ann. § 143.089(g). The Attorney General disagreed and in August 2001 issued a letter ruling

concluding that the information in Exhibit M, while appropriately placed in the police department’s

personnel files, “must also be placed in the civil service personnel files” and therefore be subject to

disclosure under the mandatory disclosure provisions of section 143.089. Tex. Att’y Gen. OR2001-

3342 (2001). The City then filed a declaratory judgment suit against the Attorney General seeking

relief from compliance with the ruling.3 See Tex. Gov’t Code Ann. §§ 552.324, .325 (West Supp.

2003).

               Both parties moved for summary judgment on the issue of whether Exhibit M was

confidential information subject to exemption from disclosure. The City moved on the grounds that

Exhibit M is a representative sample of an internal affairs investigation conducted upon the receipt

of a citizen’s complaint, and as such would not be kept in the civil service personnel files because

“they are not documents from the employing department.” (Emphasis added.) The City’s summary

judgment evidence consisted of Exhibit M and the affidavit of Captain John Moseley, whose duties

in the Division of Professional Standards of the police department include overseeing record-keeping

in the department’s internal affairs investigations. In his affidavit, Moseley averred that concerns

for confidentiality and the complainant’s privacy guided the department’s decision not to place all

documentation in the civil service personnel files even when the investigation results in disciplinary

action. Rather, only “the required documents are copied to become part of the disciplined officer’s



various investigatory materials, including officer statements, witness statements, citizens’ complaints
and charge forms. A few documents were generated by the department while others were acquired
by the department as part of the investigation.
         3
          We note that the City also sought a declaratory judgment on the confidentiality of another
exhibit, “Exhibit L.” The district court’s judgment as to Exhibit L has not been appealed.

                                                  4
personnel file.” The Attorney General moved on the grounds that Exhibit M contains documents

relating to an internal investigation of an excessive-force complaint that resulted in the disciplinary

action of a police officer, and therefore Exhibit M is subject to disclosure under section

143.089(a)(2).4 See Tex. Loc. Gov’t Code Ann. § 143.089(a)(2). The Attorney General argued that

the department could not file Exhibit M in its subsection (g) file and then refuse to also place it in

the subsection (a) file because Exhibit M showed “on its face” that the information is “from” the

department.

                   The district court granted the City’s motion and denied the Attorney General’s

motion, declaring that the information in Exhibit M is confidential under section 143.089(g) and

not subject to disclosure. See id. § 143.089(g). The district court decided that the documents in

Exhibit M were not “from” the police department as required by section 143.089(a)(2). See id.

§ 143.089(a)(2). On appeal to this Court, the Attorney General challenges that judgment.


                                       STANDARD OF REVIEW

                   The propriety of a ruling on a traditional motion for summary judgment raises a

question of law which we review de novo. Tex. R. Civ. P. 166a(c); Natividad v. Alexsis, Inc., 875

S.W.2d 695, 699 (Tex. 1994). The proper inquiry on appeal is whether the defendant, in seeking

summary judgment, fulfilled its initial burden of establishing that no genuine issue of material fact

exists and that judgment should be granted as a matter of law. Arlington Indep. Sch. Dist. v. Texas

Att’y Gen., 37 S.W.3d 152, 156 (Tex. App.—Austin 2001, no pet.) (citing City of Houston v. Clear



          4
              It is undisputed that the documents at issue relate to misconduct resulting in disciplinary
action.

                                                     5
Creek Basin Auth., 589 S.W.2d 671, 675-79 (Tex. 1979)). Evidence is viewed in the light most

favorable to the non-movant with all reasonable inferences indulged and any doubts resolved in favor

of the non-movant. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When

both parties have filed motions for summary judgment and the district court has granted one motion

and denied another, we review the summary judgment proof presented by the parties, determine all

questions presented, and render the judgment that the trial court should have rendered. Arlington,

37 S.W.3d at 156 (citing Commissioners Court v. Agan, 940 S.W.2d 77, 80 (Tex. 1997)).


                                            ANALYSIS

               On appeal, the Attorney General’s only issue is whether the “plain language of section

143.089(a)(2) of the [local government code] requires that documents from the police department

relating to misconduct of a police officer that resulted in disciplinary action be placed in the civil

service personnel file of the police officer, thus, making them subject to public disclosure.” Because

it is undisputed that the documents at issue relate to misconduct resulting in disciplinary action, the

Attorney General urges that this Court decide the proper interpretation of the requirement that the

documents placed in the civil-service personnel file be “from the employing department.” See Tex.

Loc. Gov’t Code Ann. § 143.089(a)(2).

               The City responds by asserting that the Attorney General’s issue “presented for

review was not the basis of the decision in the [district court] and is therefore not properly before

this Court for review.” The City argues that the district court based its decision on the City’s

uncontroverted summary judgment evidence that the department’s professional standards division

obeys its duty to ensure only “appropriate documents” are placed into the subsection (a) file and that


                                                  6
all other documents are maintained in the confidential subsection (g) file. Thus, if we correctly

understand the City’s argument, the district court deemed Exhibit M confidential because it is

already part of a police officer’s subsection (g) file and the Attorney General never presented

evidence proving otherwise. We disagree, and will address the City’s interpretation of section

143.089(g) as a threshold issue. See id. § 143.089(g).

               The TPIA defines “public information” as “information that is collected, assembled,

or maintained under a law or ordinance or in connection with the transaction of official business:

(1) by a governmental body; or (2) for a governmental body and the governmental body owns the

information or has a right of access to it.” Tex. Gov’t Code Ann. § 552.002(a) (West Supp. 2003).

The TPIA contains specific exceptions from compelled disclosure of information expressly made

confidential by law, certain information relating to personnel files, and certain law-enforcement and

prosecutors’ records. Id. §§ 552.101, .102, .108 (West 1994 & Supp. 2003); see also Thomas v.

Cornyn, 71 S.W.3d 473, 490 (Tex. App.—Austin 2002, no pet.). Whether information is subject to

the Act and whether an exception to disclosure applies are questions of law. AT & T Consultants,

Inc. v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995). The TPIA “shall be liberally construed in favor of

granting a request for information.” Tex. Gov’t Code Ann. § 552.001(b) (West 1994); see also AT

& T Consultants, 904 S.W.2d at 675.

               Here, the City does not contend that the requested documents are not public

information; rather, it argues on appeal only that Exhibit M is made confidential by law because it

has been placed in a subsection (g) file, which by statute is not available for public inspection. See

Tex. Loc. Gov’t Code Ann. § 143.089(g). The City cites this Court’s opinion in City of San Antonio

v. Texas Attorney General, which held that subsection (g) deemed “confidential” the contents of

                                                  7
personnel files authorized by and maintained under subsection (g), and therefore this information

is not subject to compelled disclosure because it comes within the “confidential by law” exception

to the TPIA. City of San Antonio, 851 S.W.2d at 949; see also Tex. Loc. Gov’t Ann. § 143.089(g);

Tex. Gov’t Code Ann. § 552.101. The City misconstrues our holding in City of San Antonio to the

extent that it argues that documents like Exhibit M are automatically exempted from disclosure once

the professional-standards division makes the decision to place them in the subsection (g) file. The

City overlooks that in City of San Antonio we directed our holding towards “those cases in which

the department does not take disciplinary action.” City of San Antonio, 851 S.W.2d at 948. Because

it is undisputed that Exhibit M represents a case in which the department took disciplinary action

against a police officer, the City reads City of San Antonio to mean that the department has the

discretion to withhold certain documents from the subsection (a) file even in cases where disciplinary

action is taken, and that its discretion is not subject to review. This is incorrect.

                The City of San Antonio made the same argument in City of San Antonio v. San

Antonio Express News; the San Antonio court of appeals rejected it, stating:


        Although subsection (g) permits a police department or fire department to maintain
        personnel files on its employees and officers that contain more and different
        information than appears in the civil service personnel files for the same employees,
        that does not mean that any and all documents contained in the subsection (g) files
        are automatically exempt from disclosure under the TPIA. To interpret City of San
        Antonio as urged by the City [of San Antonio] would allow a police department to
        protect from disclosure any document, which would otherwise be subject to
        disclosure under the TPIA, by placing that document into a file labeled “departmental
        subsection (g) personnel file.” We do not believe the legislature or the Austin Court
        of Appeals intended such a result.




                                                   8
47 S.W.3d 556, 563 (Tex. App.—San Antonio 2000, pet. denied). Indeed, we did not intend such

a result. The decision not to release material placed in a discretionary subsection (g) file is final,

except that “if the (g) file contains a letter, memorandum, or document from the employing

department relating to a police officer or fire fighter’s misconduct that resulted in disciplinary action

against the police officer or fire fighter, it must be placed in the officer’s or fire fighter’s (a) file.”

In re Jobe, 42 S.W.3d 174, 181 (Tex. App.—Amarillo 2001, no pet.). Furthermore, the contents of

a subsection (g) file are always subject to court review by in camera inspection to determine whether

it contains information that should have been forwarded to a subsection (a) file and made subject to

disclosure. Id. Here, the Attorney General’s summary-judgment evidence included Exhibit M,

which we presume was inspected by the district court in camera. We reject the City’s assertion that

the confidentiality of Exhibit M was established as a matter of law when the City put forth Captain

Moseley’s uncontroverted affidavit.

                Nor do we agree that the district court limited its summary judgment to a ruling on

the meaning of subsection (g) of section 143.089. Although the district court found Exhibit M to

be confidential under section 143.089(g), the basis for its decision was that the documents at issue

did not fall within section 143.089(a)(2). In a letter ruling, the court stated:


        If the phrase, “from the employing department” were to mean “held by” or “in the
        possession of” the police department, as the Attorney General argues, then that
        phrase would essentially be redundant and meaningless in the context of the statute.
        Section 143.089 only pertains to documents within the possession of police and fire
        departments. Therefore, the phrase “from the employing department” must serve to
        narrow the scope of documents if it is to have any meaning at all.




                                                    9
Mindful of our standard of review, which directs us to determine all questions presented and render

the judgment that the trial court should have rendered, Arlington, 37 S.W.3d at 156, we now turn to

the question of whether the district court properly interpreted section 143.089(a)(2).

               The Attorney General takes the position that any and all investigatory materials in a

case resulting in disciplinary action, including the background materials to that investigation, are

“from the employing department” insofar as they are held by or in possession of the department for

purposes of investigating an officer’s misconduct. We agree, and conclude that the district court too

narrowly interpreted the phrase “from the employing department.” See Tex. Loc. Gov’t Code Ann.

§ 143.089(a)(2).

               The district court’s interpretation expressly relies on In re Jobe, which held that the

“limitation excludes supporting documents such as complaints, witness statements, and documents

of like nature from individuals who were not in a supervisory capacity with the department.” Jobe,

42 S.W.3d at 180. We decline to follow the Amarillo court of appeals’ opinion on this point because

we do not believe the legislature intended the phrase “from the employing department” to restrict

the scope of information placed in a civil service file solely to a document created by the police chief

indicating some final action taken by the department. Subsections (a)-(f) of section 143.089

represent a policy of public disclosure. The court of appeals in Jobe recognized this policy, writing

that “the obvious legislative intent in its adoption of [subsection (a)(2)] is to explicate a method by

which the interest of the public in making sure that no unfit person is employed as a peace officer

but, at the same time, ensuring that innocent police officers are protected from unsubstantiated

innuendos and accusations.” Id. at 179. However, the legislature’s method of ensuring that innocent

officers would not have their reputation smeared was by requiring the documents be placed in a civil-

                                                  10
service personnel file only “if the misconduct resulted in disciplinary action by the employing

department.” Tex. Loc. Gov’t Code Ann. § 143.089(a)(2). By limiting the file to documents “from

the employing department,” the legislature sought to guard against the disclosure of information sent

directly to the civil-service commission by members of the public.5 But the file must nonetheless

consist of any and all materials forwarded to the civil service commission by the employing

department, whether or not those materials were written, generated, or created by the department.

                Furthermore, as we noted in our discussion of the subsection (g) file, the legislature

has not conferred on the department the discretion to decide which materials should be forwarded

to the civil service commission for placement in the subsection (a) file. As the Attorney General

explained in its opinion:


        [T]his office has read section 143.089 to require that any information held by the
        employing department and relating to employee misconduct must be placed in the
        civil service file if the misconduct resulted in disciplinary action. Thus, while the
        information in Exhibit M is currently in the department’s personnel files, it must also
        be placed in the civil service personnel files.




        5
           Thus, we disagree with the district court’s interpretation of section 143.089 as pertaining
only to documents within the possession of police and fire departments. The plain language of
section 143.089 does not impose such a limitation; rather, it contemplates that the personnel file
maintained by the civil service commission might consist of materials that never passed through the
hands of the employing department. For example, section 143.089(a)(1) requires that a personnel
file contain any letter, memorandum, or document relating to “a commendation, congratulation, or
honor bestowed . . . by a member of the public or by the employing department” relating to the
person’s official duties. Tex. Loc. Gov’t Code Ann. § 143.089(a)(1) (West 1999) (emphasis added).
The limitation in subsection (a)(2), therefore, is recognition on the part of the legislature that the civil
service commission might receive unsolicited letters or complaints about an officer’s conduct
directly from members of the public; if such materials are not made available to the department and
thereby do not constitute evidence in a formal investigation that results in disciplinary action, then
they should not be placed in the personnel file. Id. § 143.089(a)(2).

                                                    11
Tex. Att’y Gen. OR2001-3342. We give due consideration to the Attorney General’s determination,

especially because this case involves the TPIA “under which the Attorney General has a mandate

to determine the applicability of exceptions to public disclosure.” Rainbow Group Ltd. v. Texas

Employment Comm’n, 897 S.W.2d 946, 949 (Tex. App.—Austin 1995, writ denied); accord

Arlington, 37 S.W.3d at 159. Thus, the department may not employ subsection (g) as an exception

to the mandatory powers and duties of the civil service commission and its director to serve as

“custodian of police personnel files for general purposes, which includes compliance with the

[TPIA].” City of San Antonio, 851 S.W.2d at 948. Because any information collected, assembled,

or maintained by a governmental body is presumed open to public inspection, we must not invite the

department to circumvent the TPIA’s purpose of broad public access to governmental information

by affording it the power to first review the materials it has used in an officer-misconduct

investigation and then decide to withhold certain materials from the civil service commission by

placing them in a subsection (g) file. See City of Garland v. Dallas Morning News, 22 S.W.3d 351,

359 (Tex. 2000); see also City of Fort Worth v. Cornyn, 86 S.W.3d 320, 323 (Tex. App.—Austin

2002, no pet.).

                  On appeal, the City offers no compelling reason why the phrase “from the employing

department” serves to limit the kinds of materials that the department must send to the civil service

commission for placement in the subsection (a) file when investigation into misconduct results in

disciplinary action. Rather, the City argues that “from a practical standpoint,” deference should be

placed in the department’s role as the filtering agent for which materials are placed into the

subsection (a) file; otherwise, the department is burdened with having to “comb through all of the

§ 143.089(g) files for information that may also be disclosed” whenever a broad request for

                                                  12
documents is made. We reject this argument. The State of Texas has chosen to pursue a policy of

open government to serve the interests of the public, not the interests of bureaucratic expediency.

See Tex. Gov’t Code Ann. § 552.001(a) (“[T]he fundamental philosophy of the American

constitutional form of representative government . . . adheres to the principle that government is the

servant and not the master of the people . . . .”).

                Moreover, we fail to see in section 143.089 any requirement that police and fire

departments screen materials relating to officer misconduct before sending them to the civil service

commission for placement in their personnel file. Insofar as section 143.089 provides for the

screening of investigatory materials relating to officer misconduct, it does so by giving the civil

service commission a role as a filtering agent. As this Court explained in City of San Antonio:


        Subsections (a)-(f) of section 143.089 are important . . . because (1) they mandate the
        keeping of a personnel file on each police officer or fire fighter; (2) they designate
        the director of the civil-service commission as the officer authorized to make
        disclosure decisions, under the [TPIA], regarding those files; (3) they declare a
        legislative policy decision against disclosure of unsubstantiated claims of misconduct
        made against police officers and fire fighters, except with an individual’s written
        consent; and (4) they establish an adjudicatory process to effectuate that policy
        decision.


City of San Antonio, 851 S.W.2d at 949. Thus, whenever a member of the public makes a broad

request for information regarding an officer’s conduct, as in this case, the director of the commission

is charged with the task of inspecting the materials in its personnel file to make an initial

determination as to whether certain exceptions to disclosure may apply.6 See id. However, the only


        6
         On appeal, the City takes the position that a high level of trust must be placed in the
department to “maintain the sanctity of the two types of police and fire personnel files” because of
the “unique nature of law enforcement and the complaints that a law enforcement agency receives

                                                      13
“screening” that occurs on the part of the department before materials are placed in a subsection

(a)(2) file is a determination that the misconduct resulted in disciplinary action. See Tex. Loc. Gov’t

Code Ann. § 143.089(a)(2). In short, section 143.089 affords the department no discretion to

determine whether a letter, memorandum, or document in its possession that relates to officer

misconduct is “from the employing department.”

                The legislature has authorized a fire or police department to maintain a subsection

(g) file on a firefighter or police officer for the department’s use. Here, the fact that the City’s police

department chooses to also maintain records on investigations and complaints that result in

disciplinary action does not operate to relieve the department of the duty to forward all information

relating to a sustained disciplinary action to the civil service commission for placement in the

subsection (a) personnel file. Thus, we hold that when an investigation is made into an officer’s

misconduct, all investigatory materials—including background documents such as complaints,

witness statements, and documents of like nature from individuals who were not in a supervisory



and investigates.” The City does not expressly invoke the law enforcement exception in its brief,
but rather refers us to Captain Moseley’s affidavit for an explanation of the “unique nature of law
enforcement”; his justification for withholding certain information from the subsection (a) file
resembles the law enforcement exception. See Tex. Gov’t Code Ann. § 552.108 (West Supp. 2003)
(permitting government to withhold internal records that relate to and, if released, would interfere
with law enforcement); see also City of Fort Worth v. Cornyn, 86 S.W.3d 320 (Tex. App.—Austin
2002, no pet.) (discussing law enforcement exception).

          Although our standard of review requires us to review the summary judgment evidence to
answer all questions presented to the district court, we need not decide whether the law enforcement
exception applies because when the City sent its open records request to the Attorney General, it
never submitted any reasons or comments as to how the exception applied. Thus, the issue is not
before us because the City failed to meet the TPIA’s procedural requirements. See Tex. Gov’t Code
Ann. §§ 552.301(e), .326 (West Supp. 2003). Furthermore, if the director of the commission
believes that the law enforcement exception (or any other exception) applies, the director may still
be required to ask for an open records decision by the Attorney General. See id. § 552.301(a).

                                                    14
capacity—must be placed in the subsection (a) file if the misconduct results in disciplinary action.

Because Exhibit M consists of investigatory materials, we further hold that it must be forwarded to

the civil service commission for placement in its subsection (a) personnel file and made subject to

disclosure pursuant to section 143.089(f) of the local government code. See id. §§ 143.089(a)-(f).

We sustain the Attorney General’s issue.


                                         CONCLUSION

                Because the documents in Exhibit M must be filed with the director of civil service

commission for placement in the commission’s personnel file pursuant to section 143.089(a)(2), they

are not confidential under section 143.089(g). We therefore reverse the district court’s summary

judgment insofar as it grants the City’s motion as to Exhibit M and denies the Attorney General’s

motion as to Exhibit M; accordingly, we render judgment that Exhibit M is not confidential by law

and therefore is subject to disclosure pursuant to section 143.089(f) and the guidelines set forth in

this opinion.




                                              W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Reversed and Rendered

Filed: May 30, 2003




                                                 15
