Opinion
Civil Action No. 3:02-CV-2340-H
August 21, 2003
ORDER
Before the Court are the parties' Joint Submission on Discovery Dispute, filed on July 28, 2003, and the City of Terrell's August 14, 2003 in camera submission, submitted pursuant to the Court's August 11, 2003 Order. Based on the Joint Submission, the parties' arguments, the applicable law, and the Court's review of the in camera submission, the Court finds that Defendant Alejandro Suarez's "departmental personnel file" is discoverable by Plaintiff in this civil action.
I. BACKGROUND
On July 11, 2003, the District Court referred Plaintiff's Motion to Compel Production of Documents from Defendant City of Terrell to the undersigned United States Magistrate Judge for hearing, if necessary, and for determination. Pursuant to the July 15, 2003 Order of the Court, the parties filed their Joint Submission on Discovery Dispute on July 28, 2003, and a hearing was held on Monday, August 11, 2003, at 10:00 A.M. During the hearing, the City of Terrell ("City") explained that Defendant Alejandro Suarez ("Officer") had two personnel files: (1) the official personnel file, and (2) a departmental personnel file. The Court ordered City to produce Officer's official personnel file to Plaintiff pursuant to an agreed protective order after Officer had an opportunity to review the file to determine if it contained any documents which would implicate his Fifth Amendment privilege. The Court ordered City to submit Officer's departmental personnel file to the Court for in camera review. On August 14, 2003, the City provided Officer's departmental personnel file to the Court under seal for its review. At issue is whether Jessica Frierson ("Plaintiff") may discovery Officer's departmental personnel file in this federal civil action.
II. ANALYSIS
The City argues that Officer's departmental personnel file cannot be disclosed to Plaintiff in this action pursuant to Texas Local Government Code § 143.089(g). Section 143.089 is part of the Fire Fighter and Police Civil Service Act ("CSA"), and it applies to all municipalities that have a population of 10,000 or more, paid fire and police departments, and a local civil service commission. See TEX. LOC. GOV'T CODE ANN. §§ 143.001-143.134 (Vernon 1999). The CSA only applies to municipalities that vote to adopt it. See Hawthorne v. City of Dallas, 2000 WL 1240015, at *1 (Tex.App.-Dallas, Aug. 31, 2000, pet. denied) ("[S]tate civil service provisions apply only to municipalities that have voted to adopt them."). According to Attorney General of Texas, the City has adopted the CSA, and is thus bound by its provisions. See Op. Att'y Gen. OR2001-4677, at * 1 (2001) ("We understand that the city [of Terrell] is a civil service city under chapter 143 of the Local Government Code.").
Section 143.089 contemplates two different types of personnel files: (1) a file maintained pursuant to § 143.089(a), which is the civil service file that the police department is required to maintain; and (2) a departmental file that the police department may maintain to collect information on its officers for its own use under § 143.089(g). See id. (citing TEX. LOCAL GOV'T CODE § 143.089(a), (g)). Subsection (g) of section 143.089 authorizes, but does not require, the police department to maintain for its use a separate and independent internal personnel file relating to a police officer. It states:
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.
TEX. LOCAL GOV'T CODE ANN. § 143.089(g) (emphases added). Section 143.089(g) mandates that an officer's departmental personnel file is confidential and should not be disclosed to a "person or agency" requesting the information. Texas courts have found that this bars a request for information in a departmental file when that request is made pursuant to the Texas Public Information Act ("TPIA"). See City of San Antonio v. Texas Attorney General, 851 S.W.2d 946, 949 (Tex.App. — Austin 1993, writ denied) (concluding that "the legislature intended to deem confidential the information maintained by the . . . police department for its own use under subsection (g)"); see also City of San Antonio v. San Antonio Express-News, 57 S.W.3d 556, 563 (Tex.App. — San Antonio 2000, no pet.) (restricting confidentiality under section 143.089(g) to "information reasonably related to a police officer's or fire fighter's employment relationship"); Op. Att'y Gen. JC-0257 (2000) (addressing functions of section 143.089(a) and (g) files). These cases clearly establish that a police officer's departmental file is protected from a request for disclosure under the TPIA.
This act is formerly known as the Texas Open Records Act. See Act of May 29, 1995, 74th Leg., R.S., ch. 1035, § 29, 1995 TEX. GEN. LAWS 5127, 5142 (effective Sept. 1, 1995) (renaming Texas Open Records Act as Texas Public Information Act). The effect of the TPIA is to permit private citizens to obtain documents held by governmental entities and officials. See generally TEX. GOV'T CODE ANN. §§ 552.001-552.353 (West 1994 Supp. 2002).
In this case, however, Plaintiff is not making a request for information through the TPIA. Rather, Plaintiff is requesting Officer's personnel files through discovery allowed by the Federal Rules of Civil Procedure. Thus, the rules that govern a request for information under the TPIA do not apply. Indeed, the Fifth Circuit Court of Appeals has reasoned that the TPIA "is not intended, it appears, to affect Texas discovery rules.":
[The TPIA] does not affect the scope of civil discovery under the Texas Rules of Civil Procedure. . . . Exceptions from disclosure under this chapter do not create new privileges from discovery A subpoena duces tecum or a request for discovery that is issued in compliance with a statute or a rule of civil or criminal procedure is not considered to be a request for information under this chapter.Barrientes v. Johnson, 221 F.3d 741, 764 n. 14 (5th Cir. 2000) (citing TEX. GOV'T CODE ANN. §§ 552.005-0055 (West 1994)). Both the TPIA and § 143.089(g) contemplate a "request for information." Texas courts have interpreted these statutes together and found that a person or agency cannot make a "request for information" under the TPIA to obtain an officer's departmental file. See, e.g., City of San Antonio, 851 S.W.2d at 949; San Antonio Express-News, 57 S.W.3d at 563. At the same time, the TPIA clarifies that a "request for information" is not a request for discovery. See Barrientes, 221 F.3d at 764 n. 14. Thus, because § 143.089(g) restricts only "a person or agency that requests information." and a request for information is not a request for discovery, then § 143.089(g) does not restrict discovery. Indeed, public records laws normally do not restrict discovery. See, Cosgrove v. Greater New Orleans Expressway Com'n, 1998 WL 690969, at *1 (E.D.La. Oct. 2, 1998) (affirming magistrate judge's rejection of sheriff's argument that Louisiana's Public Records Law barred discovery of personnel records). Because Plaintiff is not making a request for information, but is rather requesting Officer's personnel files through the normal channels of federal civil discovery, § 143.089(g) does not protect Officer's departmental file from discovery. In fact, personnel files of alleged harassers are routinely discoverable. See, e.g., Revelle v. Trigg, 1999 WL 80283, *3 (E.D.Pa. Feb. 2, 1999) (noting that "discovery of supervisory evaluations and other materials in police personnel files is often permitted, despite a concern that supervisors be allowed to discipline and evaluate their subordinates candidly, because these documents may, in many cases, be the best available evidence of the knowledge and state of mind of the supervisory officials."), cited in Jones v. Hamilton County Sheriff's Dept., 2003 WL 21383332, at *7 (S.D. Ind. June 12, 2003) (ordering production of personnel files of defendant superiors as relevant to the plaintiff's retaliation claim). Furthermore, the Court has reviewed Officer's departmental personnel file and found no reason why this file should not be produced.
III. CONCLUSION
For the foregoing reasons, Officer's "departmental personnel file" is not prohibited from being discovered by Plaintiff in this action. Accordingly, it is hereby
ORDERED that the City shall produce to Plaintiff Defendant Alejandro Suarez's "departmental personnel file" pursuant to an agreed protective order within ten calendar days from the date the date of this order, September 1, 2003. It is further
ORDERED that the parties shall enter into an agreed protective order as soon as practicable, and submit the order to this Court for signature and entry. The agreed protective order shall delineate the conditions under which the above-referenced documents will be produced to Plaintiff and returned to City.