D-1-GN-18-004018

CAUSE NO. - - - - - - - CITY OF FORT WORTH, TEXAS,
Plaintiff,

v.
KENPAXTON,ATTORNEY
GENERAL OF TEXAS,
Defendant.

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8/3/2018 9:19 AM
Velva L. Price
District Clerk
Travis County
D-1-GN-18-004018
Ruben Tamez

IN THE DISTRICT COURT

TRAVIS COUNTY, TEXAS

200TH

- - - JUDICIAL

DISTRICT

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT AND
REQUEST FOR PROTECTIVE ORDER
TO THE HONORABLE JUDGE:
Pursuant to the provisions of Chapter 552 of the Texas Government Code, the City
of Fort Worth ("City") files this petition for declaratory judgment to (1) declare that the
information at issue in this lawsuit is excepted from public disclosure and (2) to grant the
City relief from compliance with Texas Attorney General Open Records Letter Ruling
OR2018-15663, AG No. 716440, and in support of this petition shows as follows:
I. Preliminary Statement
1.

The City seeks relief from an Attorney General's ruling that requires the

City to release information that is confidential and not subject to public disclosure under
Chapter 143 of the Texas Local Government Code.
II. Discov.ery Level

2.

Discovery is intended to be conducted under a Level Three (3) Discovery

Control Plan in accordance with Rule 190 of the Texas Rules of Civil Procedure.

Plaintiff's Original Petition for Declaratory Judgment and Request for Protective Order

Page I

 III. Parties
3.

Plaintiff City of Fort Worth, Texas, is a home-rule municipal corporation

located in Tarrant, Denton, Parker, and Wise Counties, Texas, duly incorporated under
the Constitution and laws of the State of Texas, and the Charter of the City of Fort Worth
adopted December 11, 1924, as amended.
4.

Defendant is the Honorable Ken Paxton, Attorney General of the State of

Texas. He may be served with citation at 300 West 15th Street, Austin, Texas 78701,
with a copy to Katherine Stark, Attorney, Open Records Division, at 300 West 15th
Street, Austin, Texas 78701-1649.
5.

Jody Barr ("Mr. Barr" or the "Requestor") is not a party to this lawsuit, but

the individual who presented the City of Fort Worth with the request for public
information that gives rise to this suit.
IV. Required Notice to Requestor
6.

Mr. Barr's address is 908 W. Martin Luther King Blvd., Austin, Texas

78701, and, under section 552.325(b) of the Government Code, the City will make a
timely good-faith effort to notify him by certified mail of the following:
(1)

the existence of the suit,_including the subject matter and cause number of
the suit and the court in which the suit is filed;

(2)

Mr. Barr's right to intervene in the suit or to choose to not participate in the
suit;

(3)

the fact that the suit is against the Attorney General; and

(4)

the address and phone number of the office of the Attorney General.

Plaintiff's Original Petition for Declaratory Judgment and Request for Protective Order

Page2

 V. Venue

7.

Venue is proper in Travis County under section 15.002(a)(2) of the Texas

Civil Practice and Remedies Code, and under Chapter 552 of the Texas Government
Code.

Section 552.353(b)(3) requires a governmental body to file its petition for a

declaratory judgment seeking relief from compliance with a decision of the Attorney
General in a District Court in Travis County.
VI. Factual and Procedural History

8.

On April 10, 2018, the City received a written request from Mr. Barr for

"records that would reveal the date, time, incident location, officer name, complainant
name, details of allegations, complaint status, Fort Worth Police Department personnel
involved in reviewing the complaint, and the outcome of all use of force cases from
January 1, 2015 to the date the request is closed." A true and correct copy of the request
is attached as Exhibit "A." The City believed that portions of the requested information
were excepted from public disclosure under section 552.101 of the Texas Government
Code in conjunction with Chapter 143 of the Texas Local Government Code.
9.

On April 24, 2018, the City of Fort Worth requested a decision from the

Attorney General pursuant to section 552.301 of the Texas Government Code and
submitted a brief along with supporting documents. The City argued that a portion of the
information and records requested were excepted from disclosure under section 552.101
of the Texas Government Code because the records fell under section 143.089(g) of the
Texas Local Government Code. A true and correct copy of the City's request to the
Attorney General is attached as Exhibit "B."

Plaintiff's Original Petition for Declaratory Judgment and Request for Protective Order

Page3

 VII. Basis for Suit
10.

On July 2, 2018, the Attorney General issued Open Records Letter Ruling

No. OR2018-15663, which the City received_ on July 5, 2018. A true and correct copy of
this letter ruling is attached as Exhibit "C." The Attorney General opined that the City
could not withhold the information at issue under section 552.101 of the Government
Code in conjunction with section 143.089(g) of the Texas Local Government Code
because the information is maintained independently of the department's internal
personnel files, such information is not confidential under section 143.089(g) of the
Texas Local Government Code.
11.

Only July 13, 2018, the City of Fort Worth, in response to Attorney General

Open Records Letter Ruling No. OR2018-15663, submitted a clarification brief to the
Attorney General Office to demonstrate that the records requested are confidential under
Chapter 143 of the Texas Local Government Code and are excepted from disclosure. A
true and correct copy of the clarification brief is attached as Exhibit "D." To this date,
the City has not received any response from the Attorney's General Office concerning the
City's clarification brief.
VIII. Issue Presented
12.

The City seeks relief from an Attorney General's ruling that requires the

City to release information that the City believes is confidential under section 143.089(g)
of the Texas Local Government Code. The information is related to a police department
investigation of an officer that did not result in discipline, and is not kept outside of the
police department's file.

Plaintiff's Original Petition for Declaratory Judgment and Request for Protective Order

Page4

 13.

Section 552.101 of the Texas Government Code excepts from required

public disclosure information considered to be confidential by law, either constitutional,
statutory, or by judicial decision. Section 552.101 encompasses information protected by
other statutes, such as section 143.089 of the Local Government Code.

Section

143.089(g) authorizes a police department to maintain, for its own use, a separate and
independent internal personnel file relating to a police officer.

Section 143.089(g)

provides as follows:
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.
In City of San Antonio v. Texas Attorney General, 851 S.W.2d 946 (Tex. App. - Austin
1993, writ denied), the court addressed a request for information contained in a police
officer's personnel file maintained by the police department for its use and the
applicability of section 143.089(g) to that file. The records included in the departmental
personnel file related to complaints against the police officer for which no disciplinary
action was taken.

The court determined that section 143.089(g) made these records

confidential. See also, City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556
(Tex. App. - San Antonio 2000, pet. denied) (restricting confidentiality under Local
Gov't Code section 143.089(g) to "information reasonably related to a police officer's or
fire fighter's employment relationship"); Attorney General Opinion JC-0257 at 6-7
(addressing functions ofLocal Gov't Code section 143.089(a) and (g) files).

Plaintiff's Original Petition for Declaratory Judgment and Request for Protective Order

Page 5

 14.

The City argues that the requested information is "G-file" information that

falls under section 143.089(g) of the Texas Local Government Code and that releasing
the information in accordance with Texas Attorney General Open Records Letter Ruling
OR2018-15663 would violate section 143.089(g) of the Texas Local Government Code.
IX. Declaratory-Judgment Request

15.

The City requests that the Court declare that ( 1) the remaining unreleased

documents requested by Mr. Barr are confidential information under Section 552.101 of
the Texas Government Code in conjunction with Chapter 143 of the Texas Local
Government Code and are not subject to disclosure under the Public Information Act, and
(2) the City is not required to comply with Attorney General's Open Records Letter
Ruling No. OR2018-15663.
X. Protective-Order Request

16.

The disclosure of the requested information would constitute an improper

disclosure of confidential information excepted from the Public Information Act.
Chapter 552 of the Government Code authorizes the Court to issue a protective order
preventing disclosure of the requested information pending a final determination by the
Court. Section 552.322 states that "[i]n a suit filed under this chapter, the court may
order that the information at issue may be discovered only under a protective order until a
final determination is made." The City requests that this Court issue a protective order
declaring that the information at issue is discoverable only under the protective order
until the Court renders a final determination of the confidential nature of the information.

Plaintiff's Original Petition for Declaratory Judgment and Request for Protective Order

Page 6

 XI. In Camera Inspection of Information

17.

Chapter 552, section 552.3221, of the Government Code states in part that,

"in any suit filed under this chapter, the information at issue may be filed with the court
for in camera inspection as is necessary for the adjudication of the case. Upon receipt of
the information at issue for in camera inspection, the court shall enter an order that
prevents release to or access by any person other than the court, a reviewing court of
appeals, or parties permitted to inspect the information pursuant to a protective order.
The order shall further note the filing date and time." Therefore, pursuant to section
552.3221, the City will separately file the "information at issue" for in camera review by
the court.
XII. Prayer

18.

The City requests that the Attorney General be cited to appear and answer,

and that the City have the following:
(1)

A protective order declaring that the records and information at issue are
discoverable only under the protective order until a final determination of
the confidential nature of the information is made;

(2)

A declaration that the specified records and information responsive to Mr.
Barr's request falls under Section 143.089(g) of the Texas Local
Government Code and is confidential and not subject to disclosure;

(3)

A declaration under Section 552.353(b) of the Texas Government Code that
grants the Plaintiff relief from compliance with Open Records Letter Ruling
OR2018-15663;

Plaintiff's Original Petition for Declaratory Judgment and Request for Protective Order

Page7

 (4)

Attorney's fees;

(5)

Costs of lawsuit; and

(6)

Such other and further relief under law and equity to which the City may be
justly entitled.
Respectfully submitted,

Isl Christopher Austria
CHRISTOPHER AUSTRIA
Assistant City Attorney
State Bar No. 24082643
Christopher.austria@fortworthtexas.gov
HARVEY L. FR YE, JR.
Assistant City Attorney
State Bar No. 00795150
Harvey.Frye@fortworthtexas.gov
CITY OF FORT WORTH
200 Texas Street
Fort Worth, Texas 76102-6311
817-392-7600
817-392-8359 (fax)

Attorneys for Plaintiff City of Fort Worth

Plaintiff's Original Petition for Declaratory Judgment and Request for Protective Order

Page 8

 VERIFICATION

STATE OF TEXAS
COUNTY OF TARRANT

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BEFORE ME, the undersigned authority on this day personally appeared
Christopher Austria, who, after being by me duly sworn on his oath, deposed and said
that he is an attorney for the City of Fort Worth, Plaintiff in the above-entitled and
numbered cause; that he has read the above and foregoing petition and that the facts
contained therein are within his personal knowledge and are true and correct.

Christopher Austria

SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority,
under my hand and seal of office this

/ -sf day of August, 2018.

Teresa MJohn
10#95442~
My Comm. Exp.
Aprtl24,2020

Plaintiff's Original Petition for Declaratorv Judgment and Request for Protective Order

Page 9

 City of
Fort Worth

EXHIBIT

City of Fort Worth
Public Information Request

A

(web form)

Date: 4/10/2018 8:24:48 AM

Request Number: W071304-041018

Due Date: 4/24/2018

REOUESTOR IDENTIFICATION:
Name:
Company Name:
Address:
Telephone:
Email:

Mr. Jody Barr
KXAN
908 W Martin Luther King Blvd
Austin TX 78701
512-269-1557
jody.barr@kxan.com

REQUEST DETAILS:
Category of Records Requested: Police Records
Description of Records Requested:
Dear Records Custodian:
This is a request under the Texas Public Information Act, A.§6252-17a et seq., to inspect and
perhaps copy the following public records:
Records that would reveal the date, time, incident location, officer name, complainant name, details
of allegations, complaint status, Fort Worth Police Department personnel involved in reviewing the
complaint, and complaint outcome of all use of force cases. The records we seek would have been
produced between Jan. 1, 2015 and the date this request is closed. If the records exist in an
electronic format, we'd prefer receiving the requested information in that format. This request is
made in the public interest and we'd ask that any fees associated with fulfilling this request be
waived.
Please do not hesitate contacting me if you have any questions regarding the scope of this request.
Sincerely, Investigative Reporter KXAN TV Jody.barr@kxan.com
Delivery Method Preferred: Electronic by Email
Consent to Exclusions or Redactions:
The City is prohibited from releasing some types of information. In an effort to expedite your
request, please check the box if you agree to exclude or redact from the requested records all of the
information found in these exclusion categories. Click here to sec complete list of all exemptions
I Agree to All:

Yes

I Agree to Some:

No (If yes, see FOIA for details)

 City of
Fort Worth

FORT WORTH®
Thomas Royce Hansen
Assistant City Attorney

Phone (817) 392-7600
l11omas.I-Iansen@fortworthtexas.gov

April 24, 2018
Honorable Ken Paxton
Texas Attorney General
ATTN: Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548
Certified Mail No.: 7016 2140 0000 1153 6841

Re:

City of Fort Worth Public Information Request No. W071304 from Jody Barr
Request for Specified Records Involving Use of Force Cases Within a Specified Time
Frame

Dear Attorney General Paxton:
On April 10, 2018, the City of Fort Worth (the "City") received a written request from
Jody Barr (the "requestor") for specified data points regarding use of force cases within the
City of Fort Worth for a specified amount of time. Exhibit "A" contains a certification of the
date the City received the request. A copy of the request is included as Exhibit "B."
The City will release a portion of the information requested. 1 However, the City
believes that the responsive records are excepted from disclosure under section 552.101 of the
Texas Government Code in conjunction with section 143.089(g) of the Texas Local
Government Code. Therefore, the City is seeking a ruling from your office in accordance with
section 552.301 of the Texas Government Code. Exhibit ''C" contains the information at
issue.
Records pertaining to investigations that did not result in discipline are confidential.

Section 552.101 of the Texas Government Code excepts from required public
disclosure "information considered to be confidential by law, either constitutional, statutory,
or by judicial decision." Section 552.101 encompasses information protected by other
statutes, such as section 143.089 of the Local Government Code.
Section 143.089 provides for the maintenance of two different types of personnel files
for each police officer employed by a civil service city: one that must be maintained as part of
the officer's civil service file and another that the police department may maintain for its own
internal use. See Local Gov't Code § 143.089(a), (g). Under section 143.089(a), the officer's
civil service file must contain certain specified items, including commendations, periodic
I

Any responsive records that were considered "A" File under Chapter 143 will be released to the requester.

OFFICE OF THE CITY ATTORNEY
The City of Fort Worth *200 Texas Street* 3'd Floor* Fort Worth, Texas 76102
817-392-7600 Fax 817-392-8359

*

EXHIBIT

B

 Honorable Ken Paxton
CFW PIR No. W071304 Barr, J.
April 24, 2018
Page 2of5

evaluations by the police officer's supervisor, and documents relating to any misconduct in
any instance in which the department took disciplinary action against the officer under chapter
143 of the Local Government Code. Id. § 143.089(a)(l)-(3). Chapter 143 prescribes the
following types of disciplinary actions: removal, suspension, demotion, and uncompensated
duty. Id. §§ 143.051-.055; see Attorney General Opinion JC-0257 (2000) (written reprimand
is not disciplinary action for purposes of Local Gov't Code chapter 143). In cases in which a
police department investigates a police officer's misconduct and takes disciplinary action
against an officer, it is required by section 143.089(a)(2) to place all investigatory rec.ords
relating to the investigation and disciplinary action, including background documents such as
complaints, witness statements, and documents of like nature from individuals who were not
in a supervisory capacity, in the police officer's civil service file maintained under section
143.089(a). See Abbott v. Corpus Christi, 109 S.W.3d 113, 122 (Tex. App.-Austin 2003, no
pet.).
All investigatory materials in a case resulting in disciplinary action are "from the
employing department" when they are held by or are in the possession of the department
because of its investigation into a police officer's misconduct, and the department must
forward them to the civil service commission for placement in the civil service personnel file.
Id. Such records may not be withheld under section 552.101 of the Government Code in
conjunction with section 143.089 of the Local Government Code. See Local Gov't Code§
143.089(£); Open Records Decision No. 562 at 6 (1990). Information relating to alleged
misconduct or disciplinary action taken must be removed from the police officer's civil
service file if the police department determines that there is insufficient evidence to sustain
the charge of misconduct or that the disciplinary action was taken without just cause. See
Local Gov't Code§ 143.089(b)-(c).
Section 143.089(g) authorizes a police department to maintain, for its own use, a
separate and independent internal personnel file relating to a police officer. See id §
143.089(g). Section 143.089(g) provides as follows:
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.
Id§ 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 a request for information contained in a
police officer's personnel file maintained by the police department for its use and the
applicability of section 143.089(g) to that file. The records included in the departmental

 Honorable Ken Paxton
CFW PIR No. W071304 Barr, J.
April 24, 20 I 8

Page 3 of5

personnel file related to complaints against the police officer for which no disciplinary action
was taken. The court determined section 143.089(g) made these records confidential. See City
of San Antonio, 851 S.W.2d at 949; see also City of San Antonio v. San Antonio ExpressNews, 47 S.W.3d 556 (Tex. App.-San Antonio 2000, pet. denied) (restricting confidentiality
under Local Gov't Code § 143.089(g) to "information reasonably related to a police officer's
or fire fighter's employment relationship"); Attorney General Opinion JC-0257 at 6-7
(addressing functions of Local Gov't Code§ 143.089(a) and (g) files).
The City is a civil service city under chapter 143 of the Local Government Code. The
Fort Worth Police Department has informed my office that different methods of reporting use
of force incidents have been used by the Police Department. Before 2012, police officers
would indicate on the police report software system that force was used in connection with the
incident being documented in the police report. By checking the use of force checkbox, the
software system would automatically generate a use of force form for the officer's supervisor
to print out. An example of those forms is enclosed as Exhibit "D." In 2012, the Police
Department implemented the IA Pro software system. The IA Pro system contains the Blue
Team reporting module which allows for the creation of use of force reports and databases.
Examples of the use of force forms generated from Blue Team module are enclosed as Exhibit
"E . "2
After the creation of a use of force incident in the IA Pro system, both the use of force
form and a summary of the use of force incident and review are maintained in the IA Pro
system. The IA Pro system can also generate a database with selected data fields being pulled
from the use of force summaries. An example of a use of force summary is enclosed as
Exhibit "E." 3 4 The use of force forms and summaries are maintained in different locations
within the IA Pro system depending upon the status of the review of the officer's conduct.
The forms are maintained with the Use of Force sub-module if no policy violations are found.
If a policy violation may have occurred, the use of force summary and the corresponding use
of force form are moved to the Complaint sub-module. If an allegation is sustained against
the officer, regardless of whether discipline is imposed, then the summary and corresponding
use of force form are maintained in the Discipline sub-module.
Use of force forms and summaries contain a summary of incident and identification of
the officers, citizens and witnesses involved. Use of force forms and summaries are reviewed
by an officer's chain of command. The review is conducted to determine whether the use of
force by the officer was in compliance with the City's policies. The use of force forms and
summaries indicate the determination by each member in the officer's chain of command of
2

The Police Department has been converting all of the paper copies of use of force forms into the IA Pro system.

3

The use of force forms themselves are Jinked to and accessible from the summary of the incident.

4

The database that can be generated from these reports is what is at issue with this specific request and is enclosed as
Exhibit "C."

 Honorable Ken Paxton
CFW PIR No. W071304 Barr, J.
April 24, 2018
Page 4 of5

whether the use of force was in compliance with the Department's policies. If a
determination is made by the chain of command that the use of force does not comply with
the Department's policies, an internal affairs investigator is assigned to investigate the
incident and upon conclusion of the investigation, the chain of command makes
recommendations for disciplining the officer within the use of force forms and summaries.
In addition to a review for compliance with City policies, the Police Department's
General Orders require use of force reports to be reviewed by Deputy Chiefs to determine if
there is a need for changes in departmental procedures, additional training for the officer or a
referral to the department psychologist. The General Orders also require all use of force
reports to be forwarded to the Police Department's Training Division to review to ensure that
the Training Division has the most current information available with report to training
methods and curriculums. The General Orders also allow a specific use of force incident to
be evaluated by the Training Division. The General Orders further require Assistant Chiefs to
conduct periodic audits of use of force incidents to ensure that the objections of management
review are being met. Copies of the last several versions of the Police Department's General
Orders for report use of force incidents are enclosed as Exhibit "F."
The only individuals who have access to the use of force forms and summaries are
those in an officer's chain of command, the internal affairs unit, and the training division.
Paper copies of use of force summaries and forms are generally not maintained by the Police
Department. However, old copies of use of force forms that have not yet been scanned into
the IA Pro sdftware system are still in existence. In addition, copies of use force forms and
summaries that resulted in discipline in accordance with chapter 143 of the Local Government
Code are maintained in the officer's civil service file in accordance with subsection
143 .089(a).
The records submitted as Exhibit "C" consists of an excel file database generated by
the IA Pro software system that compiles all use of force reports dating back to 2015 and the
data held within those reports. The IA Pro system allows for individual data points to be
selected to create a customized database. The records are maintained in confidence by the
Department for their own use. The internal affairs investigations or cases, if any, involve all
incidents where a Taser was used by a Fort Worth Police Officer. In each case, either the
investigation determined the allegations to be unfounded or the allegations did not result in
discipline under Chapter 143.
The Fort Worth Police Department asserts that use of force database generated from
the IA Pro system contained in Exhibit "C" reports incidents that did not result in discipline
under chapter 143 of the Local Government Code and are therefore confidential pursuant to
section l43.089(g). 5 The Fort Worth Police Department further asserts that only those use of
5

Your office has ruled previously that similar records held in the manner described above were confidential in OR201705226.

 Honorable Ken Paxton
CFW PIR No. W071304 Barr, J.
April 24, 2018
Page 5 of5

force forms and summaries that involve incidents that resulted in discipline become part of an
officer's civil service file maintained in accordance with subsection 143.089(a). To the extent
your office determines that the use of force database contained in Exhibit "C" are
administrative files and not personnel files, the Fort Worth Police Department asserts that the
portions of the use of force forms and summaries showing the chain of command's review,
conclusions and recommendations on incidents that did not result in discipline under chapter
143 must be withheld in accordance with section 143.089(g).
Respectfolly submitted,

Thomas Royce Hansen
Assistant City Attorney
Enclosure
c:

Mr. Jody Barr
KXAN
908 W. Martin Luther King Blvd.
Austin, Texas 78701

via electronic mail: jody.barr@kxan .com

 City of
Fort Worth

EXHIBIT

c

RECE; VEI)
KEN PA..i'{TON
t\' ITO RN EY G F. NF,RA I. OF T EXAS

BY:

July 2, 2018

Mr. Thomas Royce Hansen
Assistant City Attorney
City ofF01t Worth
200 Texas Street, 3rd Floor
Fort Wo1th, Texas 76102
OR2018-15663
Dear Mr. Hansen:
You ask whether certain information is subject to required public disclosure under the
Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was
assigned ID# 716440 (PIR No. W071304).
The City of Fort Worth (the "city") received a request for info1mation pe1taining to use of
force incidents during a specified time period. You state the city will release some
information. You claim the submitted info1mation is excepted from disclosure under section
552.101 of the Government Code. We have considered the exception you claim and
reviewed the submitted information.
Section 552.101 of the Government Code excepts from disclosure "information considered
to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't
Code§ 552.101. Section 552.101 encompasses information protected by section 143.089
of the Local Government Code. You state the city is a civil service city under chapter 143
of the Local Government Code. Section 143.089 provides for the maintenance of two
different types of personnel files for each police officer employed by a civil service city: one
that must be maintained as pait of the officer's civil service file and another that the police
department may maintain for its own internal use. See Local G.ov' t Code§ 143.089(a), (g).
Under section 143 .089(a), the officer' s civil service file must contain certain specified items,
including commendations, periodic evaluations by the police officer' s supervisor, and
documents relating to any misconduct in any instance in which the depatiment took
disciplinary action against the officer under chapter 143 of the Local Government Code. Id.

Post O ffice Box 12548, .-\ustin, T exas 78711-2548 • (512) 463-2100 • www.texasattorneygeneral.gov

 Mr. Thomas Royce Hansen - Page 2

§ 143.089(a)(l)-(2). Chapter 143 prescribes the following types of disciplinaiy actions:
removal, suspension, demotion, and uncompensated duty. Id.§§ 143.051-.055. A letter of
reprimand does not constitute discipline under chapter 143. See Attorney General Opinion
JC-0257 (2000). In cases in which a police department investigates a police officer's
misconduct and takes disciplina1y action against an officer, it is required by
section 143.089(a)(2) to place all investigat01y records relating to the investigation and
disciplinary action, including background documents such as complaints, witness statements,
and documents oflike nature from individuals who were not in a supervis01y capacity, in the
police officer's civil service file maintained under section 143.089(a). See Abbott v. Corpus
Christi, 109 S.W.3d 113,122 (Tex. App.-Austin 2003, no pet.).

All investigat01y materials in a case resulting in disciplinaiy action are "from the employing
department" when they are held by or are in the possession of the department because of its
investigation into a police officer's misconduct, and the depruiment must forward them to
the civil service commission for placement in the civil service personnel file. Id. Such
records may not be withheld under section 552.101 of the Government Code in conjunction
with section 143.089 of the Local Government Code. See Local Gov't Code§ 143.089(£);
Open Records Decision No. 562 at 6 ( 1990). Information relating to alleged misconduct or
disciplina1y action taken must be removed from the police officer's civil service file if the
police depruiment determines that there is insufficient evidence to sustain the charge of
misconduct or that the disciplinruy action was taken without just cause. See Local Gov't
Code§ 143.089(b)-(c).
Section 143.089(g) authorizes a police department to maintain, for its own use, a separate
and independent internal personnel file relating to a police officer. See id. § 143 .089(g).
Section 143.089(g) provides as follows:
A fire or police depruiment may maintain a personnel file on a fire fighter or
police officer employed by the department for the department's use, but the
deprutment 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 § l 43.089(g). In City of San Antonio v. Texas Attorney General, 851
S. W.2d 946 (Tex.App.-Austin 1993, writ denied), the court addressed a request for
information contained in a police officer's personnel file maintained by the police depruiment
for its use and the applicability of section l 43.089(g) to that file. The records included in the
depmimental personnel file related to complaints against the police officer for which no
disciplinary action was taken. The court determined section 143.089(g) made these records
confidential. See 851 S.W.2d at 949; see also City of San Antonio v. San Antonio
Express-News, 47 S.W.3d 556 (Tex. App.-San Antonio 2000, pet. denied) (restricting

 Mr. Thomas Royce Hansen - Page 3

confidentiality under Local Gov't Code§ 143.089(g) to "info1mation reasonably related to
a police officer's or fire fig~ter's employment relationship"); Attorney General Opinion
JC-0257 at 6-7 (2000) (addressing functions of Local Gov't Code§ 143.089(a) and (g) files).
You state the submitted info1mation consists of a database containing data compiled from
use of force forms and summaries pertaining to incidents involving the use of a Taser. You
state this infonnation is gathered from the city's police department's (the "depaitment")
internal files maintained for depmtment officers pursuant to section 143.089(g) of the Local
Government Code. However, you also state "[t]he use of force fonns and summaries are
maintained in different locations within the IA Pro system depending on the status of the
review of the officer's conduct." Thus, the inf01mation at issue is also maintained
independently from the depmtment's internal personnel files. The present request does not
specifically seek information from officers' deprutmentpersonnel files. Rather, the requestor
generally seeks ce1tain infonnation pertaining to use of force incidents. The city may not
engraft the confidentiality afforded to records under section 143.089(g) to records that exist
independently of the internal files. Accordingly, because the information at issue is
maintained independently of the depmtment's internal personnel files, such information is
not confidential under section 143.089(g). Therefore, the city may not withhold the
information at issue under section 552. l O1 of the Government Code on that basis. As you
raise no further exceptions to disclosure, the city must release the submitted information.
This letter ruling is limited to the pa1ticular information at issue in this request and limited
to the facts as presented to us; therefore, this rnling must not be relied upon as a previous
determination regarding any other information or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and of the requestor. For more information concerning those rights
and responsibilities, please visit our website at http://www.texasattornevgeneral.gov/open/
orl ruling info.shtml, or call the Office of the Attorney General's Open Government
Hotline, toll free, at (877) 673-6839. Questions concerning .the allowable charges for
providing public information under the Act may be directed to the Office of the Attorney
General, toll free, at (888) 672-6787.
Sincerely,

0\~~~
Katherine Stark
Attorney
Open Records Division
KS/som

 Mr. Thomas Royce Hansen - Page 4

Ref:

ID# 716440

Enc.

Submitted documents

c:

Requestor
(w/o enclosures)

 City of
Fort Worth

EXHIBIT

D

Thomas Royce Hansen
Assistant City Attorney

Phone (817) 392-7600
Thomas.Hansen@fortworthtexas.gov

July 13, 2018
Honorable Ken Paxton
Texas Attorney General
ATfN: Open Records Division
P.O. Box 12548
Austin, Texas 78711-2548
Certified Mail No.: 7016 2140 0000 1152 2554

Re:

Clarification of Attorney General Open Records Letter Ruling OR2018-15663, AG ID
No. 716440 City of Fort Worth Public Information Request No. W071304 from Jody
Barr Request for Specified Records Involving Use of Force Cases Within a Specified
Time Frame

Dear Attorney General Paxton:
The City of Fort Worth (the "City") received a written request from Jody Barr (the
"requestor") for data points involving use of force cases for a specified time frame. The City
timely requested a ruling from your office and provided documents for your review. In its brief
to your office, dated April 24, 2018 ("Brief'), the City asserted that the records at issue are
confidential pursuant to section 143.089 of the Texas Local Government Code because they
relate to summaries of internal investigations of officer conduct that did not result in discipline,
as defined by Chapter 143 of the Local Government Code. The City also provided an explanation
of the City's internal records system called "IA Pro" used to track use of force allegations,
citizen complaints, and other Internal Affairs investigations.
The City received Attorney
General Open Records Letter Ruling OR2018-15663 dated July 2, 2018, regarding this request;
the request was assigned AG ID #716440. For the reasons explained below, the City now
submits this request for clarification regarding OR2018-15663.
The ruling states "the information at issue is also maintained independently from the Fort
Worth Police Department's ("Department") internal personnel files. The present request does
not specifically seek information from officers' department personnel files. Rather, the requestor
generally seeks certain information pertaining to use of force incidents." However, the
information requested, including the identity of the reviewing officers in the chain of command
review and the status of the complaint, can only be ascertained from the IA Pro system, which is
not maintained independently from the department's personnel file. The City has included
additional information to explain the City's record keeping system in better detail and the
application of section 143.089(g) of the Texas Local Government Code to the information
maintained within it. The City maintains that the requested information is "G-file" information
under section 143.089(g) of the Texas Local Government Code and that the City is unable to

OFFICE OF THE CITY ATTORNEY
The City of Fort Worth *200 Texas Street* 3rd Floor* Fort Worth, Texas 76102
817-392-7600 Fax 817-392-8359

*

 Honorable Ken Paxton
CFW PIR No. W071304 Barr, J.
July 13, 2018
Page 2 of3

release the information in accordance with the ruling without violating section 143.089(g) of the
Texas Government Code.
The City has resubmitted the records at issue as Clarification Exhibit "A"; these records
were originally submitted as Exhibit "C" to the Brief. Additionally, the City has added additional
markings to better explain how these records are created. maintained, accessed, and the
application of section 143.089(g) to them.
Information contained in the IA Pro system is generated for the Department's use by
members and officers of the Department. One way an entry is created in the IA Pro system, is by
a supervisor documenting that an officer used force during an incident. In this situation, an
officer, per the City's general orders, is required to mark a specific box on his offense report
indicating that use of force was used. The officer is also required to notify their supervisor of the
use of force. Once the supervisor is notified by the officer, the supervisor is responsible for
entering a "blue team" report within the IA Pro system. Important to note, no report is created in
the IA Pro system by virtue of the officer indicating that force was used within the offense
report; a report within the IA Pro system is only created by an individual once the use of force is
reported. This report is not generated or a duplicate of what the officer includes in the offense
report, but is the notes, observations, and conclusions of the reviewing chain of command.
A second way an entry is created within the IA Pro system is when a citizen makes a
"citizen's complaint" to the Internal Affairs unit, supervisor, or a member of the police
department. Once a citizen makes a complaint to the Department, a Department employee will
enter the information into the IA Pro system, and the complaint is reviewed up the chain of
command to determine whether discipline will be issued against the officer.
·
Further, the Internal Affairs section of the Department can initiate an investigation into an
incident on their own. In this case, the Internal Affairs investigator assigned to the investigation
will create a report in the IA Pro system and then send his notes, report, conclusions, and
recommendation up the chain of command for review.
Any document that is created in the IA Pro system (including blue team reports) are not
kept independently of the IA Pro system. The IA Pro system is used specifically and only for the
department's use. Therefore, the City asserts that the information kept in the IA Pro system is Gfile information to the extent it did not result in discipline as defined by chapter 143 of the Local
Government Code. One point that may have led to confusion in the City's first brief is an
explanation of different "modules" that exist within the IA Pro system; however, the City wants
to make clear that the IA Pro system is used internally to document any Internal Affairs
investigations for any violation of department policy, documenting entries made by an officer's
supervisor to document Use of Force incidents as well as documenting Officer-involved auto
accidents, and pursuits for the purpose of chain-of-command review as to whether any violations
of department policy occurred during these incidents. This information exists nowhere else and
is never taken out of the IA Pro system.

 Honorable Ken Paxton
CFW PIR No. W071304 Barr, J.
July 13, 2018
Page 3 of3

Further, as mentioned above, the ruling states that "the present request does not
specifically seek information from officers' department personnel files. Rather, the requestor
generally seeks certain information pertaining to use of force incidents." The requestor has
specifically asked for the "officer name, complainant name, details of allegations, complaint
status, Fort Worth Police Department personnel involved in reviewing the complaint, and
complaint outcome of all use of force cases." The City asserts that the requested information is
very specific regarding the process of review, investigation summary, and outcome of an internal
investigation involving an officer. It may be true that certain generic information may exist
regarding a specific incident in both the offense report and a blue team report, such as the date of
the incident, the type of force used, location, and time however the City wants to make clear that
any specific information regarding a use of force incident is held only within the IA Pro system.
An example has been provided to show the difference between an IA Pro Blue Team
report generated by an officer's supervisor as well as one generated by Internal Affairs after a
Citizen Complaint. It is the information from the blue team report that can be pulled into the
database which is responsive to this request. The offense reports for these individual cases have
also been provided to show that the entries in the blue team report are unique and the same
information does not exist outside of the IA Pro system. These records are attached as
Clarification Exhibit "B."
For these reasons, the City requests clarification on whether OR2018-15663 should be
read to require the City to release information that is kept only for the Department's use,
involves information related to a Department investigation of any officer that did not result in
discipline, and is not kept outside of the IA Pro system. The City maintains that these records
may not be released without violating Chapter 143 of the Local Government Code.
Respectfully submitted,

Thomas Royce Hansen
Assistant City Attorney
Enclosure
cc:

Mr. Jody Barr
KXAN
908 W. Martin Luther King Blvd.
Austin, Texas 7870 l
via electronic mail: jody.barr@ k.xan .com