A member is looking for various examples of motions to quash a subpoena for police personnel records and would like any samples/copies that you may have available. If you have any you would like to submit please email them to me and I will forward them on.

Thank you.

Seth Howards
TDCAA

I'm not a lawyer but it is my understanding that, since officers are government employees, much of their personnel file is available to the public under the Texas Public Information Act. There are exceptions for law enforment information relatiing to active investigations.

this tactic must have been a topic in one of the latest defense lawyer CLE courses. I've had a few of them. I believe that Alex is correct. My experience was in the context of a FOIA request. The AG's office opined that the personnel records are not excepted from FOIA.

Again, no offense to Alex but Alex is neither a lawyer or prosecutor and should not be giving legal advice or even his random thoughts on legal issues. Certainly, I'd take advice from lawyers who actually know the issues, not some random guess from an anonymous layman.

No offense taken. I try to remember to explicitly state that I'm not a lawyer for exactly those reasons. Also I should mention that my understanding of this area does not come from reading the actual statutes but rather from a simplified digest published for laymen by the Attorney General entitled Texas Public Information Act Made Easy. (endnotes omitted)

The follow was cut from page 16:

quote:

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Personnel Information

What information within a public employee's personnel file is an open record?

The vast majority of information within a public employee's personnel file is considered an open record and accessible to the public. For example, information about a public employee's job performance, dismissal, demotion, promotion, resignation, and salary information are generally considered open. Similarly, job-related test scores of public employees or applicants for public employment are generally treated as open records, as are letters of recommendation, and opinions and recommendations concerning other routine personnel matters. However, Attorney General rulings have required information about an employee's withholding information on a federal tax form to be withheld, as well as information about an employee's beneficiary under governmental body life insurance programs. A governmental body may seek a ruling to withhold information under the "personnel exception" if its release would constitute an unwarranted invasion of the employee's privacy. In making its determination whether information falls within the "personnel exception," the Attorney General considers:

1. whether the information contains highly intimate or embarrassing facts about the person; and

2. whether there is any legitimate public interest in the release of or access to this information.

Under the above two part-test, a court has held that a governmental body did not have to release the names and statements of victims and witnesses alleging sexual harassment. The court found that the information at issue was intimate or embarrassing and that the public had no legitimate interest in the release of that information.

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There is also a "Law Enforcement Exception" mentioned at the bottom of that page and continuing onto the next:

quote:

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Law Enforcement Information

What information within the records of a law enforcement entity may be withheld?

Section 552.108 of the Government Code contains what is generally referred to as the "law enforcement exception." This exception allows the governmental body to withhold four types of information:

1) Information that if released would affect the governmental body's ability to investigate or prosecute;

2) Information pertaining to investigations and prosecutions of crime that did not result in a conviction or a deferred adjudication;

3) Threats Against Peace Officers: Information that deals with threats against a peace officers collected or disseminated under Government Code section 411.048; or

4) Attorney Work Product: Information that the attorney of the governmental body prepared for use in criminal litigation or information reflecting the mental impressions or legal reasoning of the attorney regarding such litigation.

It is important to note that the law enforcement exception does not except from disclosure basic information about an arrested person or basic information within a criminal citation or police offense report. Information that has been held to be open includes:

1. The name, age, address, race, sex, occupation, and condition of an arrested person.
2. The date and time of the arrest.
3. The offense charged and the booking information.
4. The location of the crime and the involved property.
5. The names of the arresting and investigating officers.

Section 552.108 only applies to criminal investigations and prosecutions. Where no criminal investigation or prosecution results from an investigation of a police officer for alleged misconduct, section 552.108 is inapplicable.

It is also important to note that the law enforcement exception may apply to departments other than the police department if those departments are, by law, charged with the detection, investigation, or prosecution of crime. For example, the Attorney General has determined that the arson investigation unit of a fire department may cite the law enforcement exception to protect some of its records.

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To give a little context, page 14 says government employees need to explicitly request that their personal data (not personnel data) be kept private but there is an exception for peace officers:

quote:

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It is important to note that a peace officer is not required to file a written request to keep his/her personal information confidential. A peace officer's home address, home phone number, social security number, and any information about family members are all automatically confidential while employed by the governmental body. Additionally, the home address, home phone number, social security number, and any information about family members relating to a peace officer killed in the line of duty will remain confidential after his death.

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I have had to deal with this a couple times and it was usually when some police officer found his/her name in the media over a controversial arrest...then all of a sudden I get a bunch of these subpoenas. My attack on them usually goes along the line of suggesting that they are just a nuisance and a fishing expetition and the defense has made no showing of relevancy...the fall back position of course is the in-camera (sp) inspection by the judge. Here is a case I took a look at...I'm sure there are others:

Ealoms v. State, 983 S.W.2d 853

I did have one officer suggest after his file was thrown open for all to see that we should counter this by requesting that the State Bar send the complaint record of defense counsel for a little look see...I like the sentiment of that but good luck.

It appears that different rules apply to releasing information requested under the Public Information Act and releasing information under subpeona. If the Attorney General's publication I linked above is accurate then a showing of relevancy is not only not required, the government may not even inquire into the relavancy.

From page 9:

quote:

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What inquiries can a governmental body make of an open records requestor?

Generally, there are only two permissible lines of inquiry that can be made of a requestor. First, the governmental body can ask a requestor for proper identification, but may not inquire into the motives or use that a requestor may have for public information that has been requested. This inquiry for proper identification should be done if needed, but if the information can be given without any identification, then the inquiry is not necessary. This identification requirement is generally imposed by a governmental body when a state statute limits who may gain access to certain information (e.g., certain state statutes limit who can receive copies of ambulance run information). It should be noted that state law does not indicate how such identification could be accomplished if the request is completely handled through the mail, e-mail, or by fax. It should also be noted that certain statutes regulate who can gain access to information within motor vehicle records such as copies of drivers' licenses. These statutes contain specific rules on what inquiries can be made to determine if the requestor is eligible to receive the information. If an open records request involves such information, the governmental body should visit with its local legal counsel regarding the applicable law.

Second, a governmental body may ask the requestor for a clarification of what type of information is actually being requested. Often, an initial open records request may involve the production of more documents than the requestor intended. Similarly, many open records requests ask for information that is not kept by the governmental body in the requested format. In either case, the governmental body can ask the requestor whether a potential narrowing or variation of the request would meet the requestor's needs. In this way, the governmental body can potentially save its resources and the requestor can avoid receiving unnecessary information.

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Alex, please stop before you hurt someone. It doesn't really help to have a layperson cut and paste from some book. Find another forum.

Sorry, I meant no harm.

I understand requests under the Texas Public Information Act are not at all the same thing as a motion to quash. That said, if the Attorney General is publishing information for laymen that says police personnel records are public records... well that seems, at least tangentially, relevant to the topic of this thread's original post. Again, I apologize if I derailed this discussion.

To clarify for you Alex, this is not a request made under PIA, but rather a discovery request. While they may seem similar in some aspects, they are covered by different rules. There may be some overlap in some cases, but in many more cases they are very different.