January 29, 2008

Mr. Marc J. Schnall

Langley & Banack

Trinity Plaza 11

745 East Mulberry, Suite 900

San Antonio, Texas 78212-3166

OR2008-01283

Dear Mr. Schnall:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 300419.

The Selma Police Department (the "department"), which you represent, received a request for all records involving a named individual, specifically including information pertaining to a murder investigation and a sexual assault investigation. You claim that portions of the submitted information are excepted from disclosure under sections 552.101, 552.108, 552.130, and 552.147 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note that you have only submitted information pertaining to the murder investigation, and you have not submitted information pertaining to the sexual assault investigation. To the extent responsive information pertaining to the sexual assault investigation existed on the date that the department received the instant request, we assume that information has been released to the requestor. If the department has not released any such information, the department must release it to the requestor at this time. See Gov't Code §§ 552.301(a), .302; Open Records Decision No. 664 (2000) (noting that if governmental body concludes that no exceptions apply to requested information, it must release information as soon as possible under circumstances).

The department argues that a portion of the submitted information may be withheld under section 552.108(a)(2) of the Government Code. Section 552.108(a)(2) excepts from disclosure information concerning an investigation that concluded in a result other than conviction or deferred adjudication. A governmental body claiming section 552.108(a)(2) must demonstrate that the requested information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. You state that the case detailed in the offense report concluded in a result other than conviction or deferred adjudication. Therefore, we agree that section 552.108(a)(2) is applicable to the requested information, and the department may withhold the information it has marked on this basis. ⁽¹⁾

Next, the department argues Texas motor vehicle record information contained in the submitted information must be withheld. Section 552.130 of the Government Code provides that information relating to a motor vehicle operator's license, driver's license, motor vehicle title, or registration issued by a Texas agency is excepted from public release. Gov't Code § 552.130(a)(1), (2). We note, however, that section 552.130 protects the privacy interest of an individual, and because that right of privacy is purely personal, it lapses upon death. See Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex. App.--Texarkana 1979, writ ref'd n.r.e.); see also Attorney General Opinions JM-229; H-917; ORD 272. Accordingly, the department may not withhold any information pertaining to the deceased individual pursuant to section 552.130. However, the department must withhold the remaining Texas motor vehicle record information you have marked, as well as information we have marked, under section 552.130.

Finally, you assert that some of the remaining information is excepted under section 552.147 of the Government Code, which provides that "[t]he social security number of a living person is excepted from" required public disclosure under the Act. ⁽²⁾ Gov't Code § 552.147. Accordingly, the department may withhold the social security numbers you have marked under section 552.147.

In summary, the department may withhold the marked portions of the offense report pursuant to section 552.108(a)(2) of the Government Code. With the exception of the deceased individual's information, the department must withhold the marked Texas motor vehicle record information under section 552.130 of the Government Code. The department may withhold the social security numbers it has marked under section 552.147 of the Government Code. The remaining submitted information must be released.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at (877) 673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can challenge that decision by suing the governmental body. Id. § 552.321(a); Texas Dep't of Pub. Safety v. Gilbreath , 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the Office of the Attorney General at (512) 475-2497.

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Chanita Chantaplin-McLelland

Assistant Attorney General

Open Records Division

CC/mcf

Ref: ID# 300419

Enc. Submitted documents

cc: Mr. Ron Maloney

Seguin Gazette Enterprise

P.O. Box 1200

Seguin, Texas 78156-1200

(w/o enclosures)

Footnotes

1. As our ruling is dispositive, we need not consider your remaining claimed exception to disclosure of this information.

2. Section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act. Gov't Code § 552.147(b).

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