TEXAS DEPARTMENT OF PUBLIC SAFETY

5805 N. LAMAR BLVD. • BOX 4087 • AUSTIN, TX 78773-0001 512/424-2000 www.txdps.state.tx.us

STEVEN C. McCRAW DIRECTOR LAMAR BECKWORTH BRAD RABLE DEPUTY DIRECTORS

COMMISSION ALLAN B. POLUNSKY, CHAIR C. TOM CLOWE, JR. ADA BROWN JOHN STEEN CARIN MARCY BARTH

March 9, 2010 Via Email Shirley Pigott Texas Medical Board Watch shirleypigottmd@gmail.com RE: PIA Request for complete personnel and disciplinary files of Trp. Alfred Ochoa and Lt. Daniel Terronez (ORA # 10-0401)

Dear Ms. Pigott: The Department of Public Safety received your above-referenced request on February 22, 2010. Initially, please note that the federal Freedom of Information Act (5 U.S.C. Ch. 552) applies to federal agencies, not to state agencies. The Texas Public Information Act (PIA) (Gov't Code Ch. 552) applies to governmental bodies in this state. Further, please be advised that the Department does not certify documents, nor do we provide business records affidavits. If you wish to authenticate documents for admission in court, please submit a subpoena to the custodian of the requested records. Regarding your request for “a certified true and correct copy of the first five minutes of the official DPS video” of your traffic stop, please be advised that a search of Department records based on the information provided revealed no information responsive to this request. The requested video was turned over to the district attorney, and the Department no longer has a copy. You were previously notified of this on June 11, 2009. Regarding your request for “any and all documents…concerning the incident with Officer Ochoa on September 29, 2007,” please note that the Department has previously obtained a ruling from the attorney general’s office with respect to this information. Open Records Letter Ruling 200911328. Your criminal case is still pending in the courts; accordingly, we are continuing to withhold the requested information pursuant to Gov’t Code § 552.108(a)(1). See id. The first page of your offense report was previously released to you on August 4, 2009. Turning now to your request for “any and all written policies and procedures or guidelines concerning, guiding, directing, or controlling the Texas DPS Officers which may dictate or suggest the mode and manner of carrying out their duties and expected behavior in dealing with or addressing the public during a traffic stop,” please find enclosed an electronic copy of the Department’s General Manual from 2007. Also enclosed is a copy of the current Texas Highway
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Patrol Manual. Please note that historical copies of the THP manual are not retained by the Department; however, each page contains on the bottom the date on which that page was last updated. You next request “the complete personnel file concerning or pertaining to Officers Ochoa and Daniel Terronez” and “the complete employment and disciplinary file concerning or pertaining to Officer Ochoa and Officer Daniel Terronez.” Disciplinary records are part of an officer’s personnel file; accordingly, these requests seem to be for the same information. Release of a commissioned officer’s personnel records is governed by Gov’t Code § 411.00755. Please see the attached cost estimate for information on the cost of obtaining the public information from Trp. Ochoa’s and Lt. Terronez’s personnel files. Records related to misconduct by an officer may not be disclosed unless they resulted in disciplinary action against the officer. See id. at § 411.00755(b)(1)(B). As used in this statute, disciplinary action means “discharge, suspension, or demotion.” See id. at §§ 411.00755(a)(2) and 411.0072(a)(1). We believe the remaining records responsive to this portion of your request may be excepted from required public disclosure at this time pursuant to Gov’t Code § 552.101 in conjunction with § 411.00755. We are seeking a ruling from the attorney general's office with respect to disclosure of these records, and a copy of our request letter is enclosed. You will be notified directly by the attorney general's office when a ruling is issued. You also request “any and all documents…showing, reflecting, or evidencing the scene, activities, or events in or surrounding any concern, inquiry, report, or complaint filed against Officer Ochoa or Terronez or any of the other officers, supervisors, deputies, or other employees of the Texas DPS who came in contact with me on September 29, 2007.” As noted above, complaint investigations against a commissioned officer are not subject to disclosure unless they resulted in disciplinary action. Further, the Department does not have any records responsive to this portion of your request except for the information the Department is withholding pursuant to Gov’t Code § 552.108(a)(1), above. Next, you request “a list all traffic stops, including warnings or citations made by Officers Ochoa or Terronez in the history of their employment at DPS where the alleged speed was less than 10 mph in excess of the posted speed limit.” Please note that the Department does not classify stops as less than 10 mph over the speed limit. However, we will be happy to provide you with a list of all stops made by Trp. Ochoa and/or Lt. Terronez for which we have records. The requested information can be made available only at a cost that covers the programming and/or manipulation of data. See Gov't Code § 552.231(a). The above-requested information is not available in the requested form. The information is currently stored in one or more extensive databases. Accessing the requested information will require programming to filter and sort a very large amount of data. The estimated time it will take to capture the requested data is approximately two weeks. Please see the attached cost estimate for information on the cost of obtaining these records. Finally, you request “any documents or tangible evidence that you may have or that you may have the ability to secure in performing your duty to investigate the conduct and actions of Officers Ochoa and Terronez.” It is unclear what information you may be referring to here. The

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only documents or evidence viewed in reviewing your complaint of Trp. Ochoa and Lt. Terronez was your offense report and Trp. Ochoa’s dash-cam video. As noted above, the Department is withholding your offense report pursuant to Gov’t Code § 552.108(a)(1), and we do not have a copy of Trp. Ochoa’s dash-cam video as it was turned over to the district attorney’s office some time ago. We have determined that complying with your request will result in the imposition of a charge that exceeds $40. Therefore, we are providing you with the enclosed cost estimate as required by Gov't Code § 552.2615. The estimated cost of providing the responsive records is $170.66, as set forth on the enclosed cost estimate. There is a less expensive way for you to obtain this information. You may view the personnel information in person at our offices. If you choose to view the information in person, please provide me with three dates and times when it will be convenient for you to visit. Additionally, these charges may be reduced if you narrow or clarify the scope of your request. Your request will be considered automatically withdrawn if you do not notify us in writing within ten business days from the date of this letter that you either: (a) accept the charges; (b) wish to modify your request; OR (c) have sent to the Open Records Division of the Office of the Attorney General a complaint alleging that you are being overcharged for the information you have requested. If you have any questions regarding this request, please contact me at (512) 424-2890. Sincerely,

Jennifer C. Cohen Assistant General Counsel cc: The Honorable Greg Abbott Attorney General of Texas Open Records Division 209 West 14th Street, 6th Floor Austin, Texas 78701 fax: (512) 463-2092

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TEXAS DEPARTMENT OF PUBLIC SAFETY
5805 N. LAMAR BLVD. • BOX 4087 • AUSTIN, TX 78773-0001 512/424-2000 www.txdps.state.tx.us

STEVEN C. McCRAW DIRECTOR LAMAR BECKWORTH BRAD RABLE DEPUTY DIRECTORS

COMMISSION ALLAN B. POLUNSKY, CHAIR C. TOM CLOWE, JR. ADA BROWN JOHN STEEN CARIN MARCY BARTH

March 9, 2010 Via Facsimile The Honorable Greg Abbott Attorney General of Texas Open Records Division (512) 463-2092 RE: PIA Request for complete personnel and disciplinary files of Trp. Alfred Ochoa and Lt. Daniel Terronez (ORA # 10-0401)
2/22/2010 3/9/2010

DATE REQUEST FOR INFORMATION RECEIVED: DATE REQUEST FOR RULING SUBMITTED TO ATTORNEY GENERAL:

Dear Attorney General Abbott: The Department of Public Safety received the above-referenced request for information from Shirley Pigott on February 22, 2010. Due to the Texas Independence Day holiday on March 2, 2010, when our offices were closed, we believe this request for a ruling on disclosure is timely made in accordance with Gov’t Code § 552.301. We believe at least a portion of the requested information is excepted from required public disclosure pursuant to Gov’t Code § 552.101. Accordingly, we are requesting a ruling regarding the release of these records. Please find enclosed the request from Shirley Pigott and the notice of our request for a ruling sent to the requestor. The responsive records will be submitted to your office no later than March 16, 2010. Please feel free to contact me at (512) 424-2890 if you have any questions. Sincerely,

Jennifer C. Cohen Assistant General Counsel cc: Shirley Pigott MD Texas Medical Board Watch shirleypigottmd@gmail.com

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Cost Estimate for ORA # 10-0401
Item Standard Copies Accident Report Nonstandard Copies Large Copies Photographs Compact Discs DVDs Video Cassettes Audio Cassettes Personnel Charges Programming Charges Overhead Charges Computer Charges Mainframe Midrange Client/Server P/C or LAN Postage & Shipping Total Number 202 Cost $0.10 per page $6.00 each (TRC 550.065) $0.50 per page $1.26 each $1.00 each $3.00 each $2.50 each $1.00 each $15.00 per hour $28.50 per hour 20% of labor charges $10.00 per CPU minute $1.50 per CPU minute $2.20 per clock hour $1.00 per clock hour actual costs Total $20.20

7.3

$109.50 $21.90

7.3

$16.06 $3.00 $170.66

Prepared on 3/9/2010