City must release misconduct records to victim’s mother

City must release misconduct records to victim’s mother

• A Texas appeals court determined that placing records in a confidential folder when they belonged in a public folder does not protect them from disclosure

A Texas appeals court determined on Feb. 2 that a fire or police department director may seal a public employee’s personnel file, except for any departmental document relating to misconduct that resulted in disciplinary action.

The underlying dispute involved access to records regarding the suspension of Keith Jobe, a police officer who was suspended after he was accused of giving his police-issued Polaroid camera, film and handcuffs to a 16-year-old girl. Jobe met Fairly Kearse while he worked a second job as a mall security officer in Lubbock, and allegedly told her to use the camera and film to take nude photographs of her friends and the handcuffs as props.

Kearse’s mother sued Jobe for intentional infliction of emotional distress against her daughter and sought Jobe’s disciplinary file as evidence. A lower court granted the city’s request for a protective order to withhold every record in the department’s file, including any that might have properly belonged in a public file.

The Texas open records law requires directors of fire and police departments to maintain a public file on each officer or fire fighter that contains “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.” The law also allows the department to keep a separate file for “the department’s use, but the department may not release any information contained in the department’s file to any agency or person requesting information relating to a fire fighter or police officer.”

The Court of Appeals of Texas in Amarillo interpreted the statute to make privileged any information in the file for departmental use and its release was at the discretion of the department director unless it contained information that should be in the public file. In that case, those documents should be removed from the department’s files and released to the public.

(In Re Keith Jobe v. Court of Appeals of Texas) — CC

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