dissenting.
I respectfully dissent.
This is an action arising out of a request made under the Open Records Act (“the Act”).1 Section 3(a) of the Act declares that all information collected, assembled, or maintained by a government body is public information and available to the public unless expressly exempt from the Act by one of its twenty-three exceptions. Section 1 of the Act commands that the provisions of the Act are to be liberally construed in favor of disclosure.
Pursuant to the Act, the San Antonio Light, a newspaper owned by the Hearst Corporation, requested certain documents from the San Antonio Police Department (SAPD). SAPD refused the request on the basis that the information was protected from disclosure under two express exceptions contained in the Act, section 3(a)(3) (information involving government litigation) and section 3(a)(8) (law enforcement criminal investigation and internal records). SAPD asked the Attorney General (AG) for a legal opinion on whether these two exceptions protected disclosure of the requested documents, as required by the Act. See § 7(a). The AG rendered his opinion that the documents were not shielded under either provision and that the SAPD must disclose and deliver the documents. Tex. Att’y Gen. ORD-354 (1989).
The City of San Antonio, on behalf of its police department, SAPD, then filed suit against the AG, seeking a judicial declaration that the AG’s opinion was erroneous because the documents are protected under both sections 3(a)(3) and 3(a)(8) of the Act. The AG counterclaimed and the Hearst Corporation and its employee Juli Branson intervened, each seeking injunctive relief, a writ of mandamus against the City to compel disclosure, and a declaration that the opinion was correct. Thereafter, all parties filed motions for summary judgment.
The City’s action, however, had been initiated by the city attorney without obtaining proper authority from the city council and upon motion the trial court dismissed with prejudice all of the City’s claims for affirmative relief. The City does not complain of this dismissal on appeal. Once the City’s offensive pleadings were dismissed, its challenge to the AG’s opinion was abandoned, and on appeal the City does not rely *954upon either section 3(a)(3) or section 3(a)(8) of the Act as authority for its refusal to produce the requested documents.
Instead, the City argues on appeal that the documents requested are exempt from disclosure under section 3(a)(1) of the Open Records Act. Although the City referred to this argument in a trial brief, it did not allege this contention in its pleadings below. Under this exception, information “deemed confidential by law” is exempt from disclosure.
After dismissal of the City’s claims for affirmative relief, only its defensive pleadings remained. In its defense, the City had alleged that the documents were precluded from compelled disclosure by section 143.-089 of the Local Government Code,2 a section entitled “Personnel Pile.” Section 143.089(a) of the Code provides that in those eligible municipalities where the voters have adopted the civil service system, the director of civil service is charged with maintaining an official personnel file for each police officer. The Code addresses what must be contained therein and sets out procedures for including and removing information relating to misconduct charges. In addition to the director’s file, a police department also “may maintain a personnel file on [an officer] ... but the department may not release any information contained in the department file.” § 143.089(g). Instead, the department must refer requests for information to the director, who may not release information without the officer’s consent unless the law (presumably including the Open Records Act) so requires. § 143.089(f), (g).
Even after the City’s affirmative pleadings had been dismissed, it did not plead section 3(a)(1) or any other section of the Act in defense of the appellees’ action, and it did not file a response asserting section 143.089 of the Code or section 3(a)(1) of the Act in defense of appellees’ motions for summary judgment. In fact, the City filed no response to either motion. Its own un-sworn motion alleged merely that it was entitled to judgment because “it is clear from the [unspecified] statutes that neither the intervenor nor the public is entitled to materials” from SAPD’s internal affairs files. The City filed only a brief in support of its motion, attaching to it two short affidavits concerning the requested documents. I believe the City’s failure to plead in response to the appellees’ motions for summary judgment is fatal to its appeal.
After reviewing the requested documents, the trial court determined that they were not confidential and were subject to disclosure. The trial court granted the motions of the Hearst Corporation and the AG. In the absence of a response, the City’s only complaint on appeal can be that the motion is insufficient to support summary judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979); Fisher v. Capp, 597 S.W.2d 393, 397 (Tex.Civ. App.—Amarillo 1980, writ ref’d n.r.e.).
Under the Act, information is presumed public. If a governmental entity believes that an express exception shields the information from the public, it may seek the AG’s opinion on the matter pursuant to section 7(a) of the Act. The City had requested the AG’s opinion only as to the applicability of sections 3(a)(3) and 3(a)(8). It never sought an opinion on whether the information was deemed confidential under section 3(a)(1) of the Act as a result of the provisions of section 143.089 of the Code. If a governmental entity does not request an AG opinion, the information requested is presumed to be public under the Act and interpretive caselaw. § 7(a); Vandiver v. Star-Telegram, Inc., 756 S.W.2d 103, 106 (Tex.App.—Austin 1988, no writ); City of Houston v. Houston Chronicle Publishing Co., 673 S.W.2d 316, 324 (Tex.App.—Houston [1st Dist.] 1984, no writ). The effect of the operation of section 7(a) is to fix the burden of producing evidence upon the government to show that information is not public. Vandiver, 756 S.W.2d at 106. Here, the City did not request an opinion *955based upon section 3(a)(1), and the law presumes the records to be open.
The summary judgment proof established that SAPD has an internal affairs unit; the purpose of the unit is to investigate alleged misconduct of police officers; the unit maintains a file on each police officer for SAPD’s use in investigating any charges; these files are separate from the personnel files maintained by the director of civil service; some but not all of the information collected by the unit may be forwarded to the director if it is required to be included in the officer’s personnel file; and the unit forwards some actual documents to the director and in some instances forwards summaries of its investigation results.
The summary judgment record further shows that the Light served the City with a request for specific information SAPD claims is contained in its internal affairs files; the City refused the request; in refusing, the City did not rely upon any AG opinion or court authority supporting the refusal; the City requested the AG’s opinion as to the applicability of sections 3(a)(3) and 3(a)(8) of the Act; the AG rendered his opinion that these two sections did not shield the requested information from disclosure; in refusing, the City did not contend that the information was contained in personnel files or that the information was exempt from disclosure based upon section 3(a)(1) of the Act or section 143.089 of the Code; the City did not. rely upon any AG or court authority determining such a fact; and the City did not request an AG opinion on whether section 3(a)(1) of the Act or section 143.089 of the Code rendered the documents confidential and thereby precluded their production.
As movants on summary judgment, the Hearst Corporation and the AG had the burden of establishing that no material fact issue existed and that they were entitled to judgment as a matter of law. Tex.R.Civ.P. 166a; Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Vandiver, 756 S.W.2d at 106. All parties agree there are no facts in dispute. The summary judgment record established that the information requested was contained in SAPD’s internal affairs files, that the information was presumed to be public pursuant to section 7(a) of the Act and that, therefore, appellees were entitled to summary judgment.
Once the movants showed that they were being denied public information collected and maintained by a governmental body, in order to avoid summary judgment, the City had the burden to demonstrate that the documents came within an express exception to the Act and were not subject to compelled disclosure. In order to rebut the presumption, the City had the burden to present to the trial court by written response to the motions any reasons that would defeat the movants’ right to judgment and to marshal summary judgment proof in support of its claim that the information came within an exception to the Act. Issues not expressly presented to the trial court by written response shall not be considered on appeal as grounds for reversal. Tex.R.Civ.P. 166a(c); Clear Creek, 589 S.W.2d at 678-79. The City, however, never filed a response to the appellees’ motions for summary judgment and never alleged an exception in the Act rendering the information confidential. Instead, the City apparently relied upon its affirmative defense pleading wherein it asserted that production was barred by section 143.089 of the Code. However, merely pleading an affirmative defense will not stop the granting of a summary judgment. Nicholson v. Memorial Hosp. Sys., 722 S.W.2d 746, 749 (Tex.App.1986).
I would hold that the City failed to demonstrate that the documents were prohibited from disclosure under section 3(a)(1) of the Act and section 143.089 of the Code. Absent such a showing by the City, mov-ants were entitled to judgment, and the City cannot argue on appeal that granting of this judgment was erroneous.
Further, section 143.089 of the Code pertains only to personnel files. Under the City’s position, section 143.089 could render the information confidential only if the requested records are contained in personnel files. The City describes the files in issue as “internal affairs files” maintained by *956SAPD’s internal affairs division for its use in investigating alleged misconduct of officers. The City makes no showing that these investigation files are personnel files within the meaning of section 143.089. They are not the personnel records the City is required to maintain under section 143.-089(a). The City does not rely upon the Act’s personnel file exception, section 3(a)(2), or upon any common law privacy protection. The City’s position is based upon the assumptions that any information it obtains about an officer that is not required to be placed in the director’s personnel file is confidential, and that the files into which the information is placed constitute personnel files. The City’s argument merely assumes without proof that internal affairs investigation files necessarily must be personnel files within the meaning of section 143.089 of the Code and therefore the contents must be confidential. The fact that the requested information is not contained in the director’s files, however, does not result in the conclusion that it is contained in personnel files. When faced with similar facts, another court of appeals summarily dismissed the argument that such files were personnel files. Morales v. Ellen, 840 S.W.2d 519, 524 (Tex.App.—El Paso 1992, writ denied) (interpreting Act’s section 3(a)(2) personnel file exception).
Finally, the requested information is exempt from disclosure and deemed to be confidential by law only if the statute is read in a manner that prohibits disclosure of information in the internal affairs files under any circumstances. Section 143.089 of the Code does not designate what personnel information may be produced and what is confidential. It does not state what information is public and what is protected. It does not expressly forbid the release of information to anyone under any circumstances as the majority opinion suggests. It merely denies the department discretion to release personnel information, directing instead that it refer requests and defer decisions to the civil service director who maintains the official personnel file. The Code contemplates that even confidential information in the director’s files may nevertheless be subject to release under certain circumstances. § 143.089(f).
I cannot read the statute as shielding from the public all information SAPD may place in its internal affairs files simply because after-the-fact it chooses to label them as personnel files. Because section 143.089 of the Code governs only those municipalities of 10,000 or more inhabitants that have adopted the civil service system,3 I also question whether the legislature intended to treat the public or its law enforcement officers differently based upon size of the particular municipality and whether it has adopted a civil service program. Instead, I would hold the documents in dispute to be subject to release based upon the same balancing test applied to similarly sensitive personal information. See Industrial Found, v. Texas Indus. Accident Bd., 540 S.W.2d 668, 678 (Tex.1976); Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 550 (Tex.App.—Austin 1983, writ ref d n.r.e.).
I note that since the institution of this litigation, the AG has rendered an opinion construing the effect of section 143.089 of the Code in light of section 3(a)(1) of the Act. In his opinion, while a department may maintain personnel files containing a category of information not subject to public disclosure, section 143.089 does not diminish the public’s right to obtain access to public personnel information but merely provides a procedural method for obtaining public information. Tex.Att’y Gen. ORD-562 (1990).
For the reasons stated, I would affirm the trial court’s judgment.
. All further references in the text to the Act are to Tex.Rev.Civ.Stat.Ann. art. 6252-17a (West Supp.1993).
. All further references in the text to the Code are from Tex.Loc.Gov’t Code Ann. (West Supp. 1993).
. See § 143.002.