January 23, 2009

Ms. YuShan Chang

Assistant City Attorney

City of Houston

P.O. Box 368

Houston, Texas 77001-0368

OR2009-00933

Dear Ms. Chang:

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# 333006.

The Houston Police Department (the "department") received a request for a specified police report. You state the department has released some of the requested information. You claim that the submitted information is excepted from disclosure under sections 552.108, 552.130, and 552.147 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. ⁽¹⁾ We have also received and considered comments from a representative of the requestor. See Gov't Code § 552.304 (interested party may submit comments stating why information should or should not be released).

As your argument against disclosure under section 552.108(a)(2) of the Government Code is potentially the most encompassing, we address this argument first. Section 552.108(a)(2) excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . it is information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication[.]" Id. § 552.108(a)(2). A governmental body claiming section 552.108 must reasonably explain how and why this exception is applicable to the information at issue. See Id. §§ 552.108, .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state that the submitted information pertains to a case that concluded in a result other than conviction or deferred adjudication. However, you also state that this case is inactive pending additional leads. Because of these contradictory arguments, we find that the department has failed to demonstrate that section 552.108 is applicable to the information at issue. Accordingly, the submitted information may not be withheld under section 552.108(a)(2) of the Government Code.

Section 552.101 of the Government Code excepts from public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." ⁽²⁾ Gov't Code § 552.101. This section encompasses information made confidential by other statutes. Section 11 of article 49.25 of the Code of Criminal Procedure, which governs the disclosure of autopsy photographs. Section 11 provides as follows:

The medical examiner shall keep full and complete records properly indexed, giving the name if known of every person whose death is investigated, the place where the body was found, the date, the cause and manner of death, and shall issue a death certificate. The full report and detailed findings of the autopsy, if any, shall be a part of the record. Copies of all records shall promptly be delivered to the proper district, county, or criminal district attorney in any case where further investigation is advisable. The records are subject to required public disclosure in accordance with Chapter 552, Government Code, except that a photograph or x-ray of a body taken during an autopsy is excepted from required public disclosure in accordance with Chapter 552, Government Code, but is subject to disclosure:

(1) under a subpoena or authority of other law; or

(2) if the photograph or x-ray is of the body of a person who died while in the custody of law enforcement.

Code Crim. Proc. art. 49.25, § 11. There is no indication the exceptions to confidentiality provided in section 11 are applicable in this instance. Therefore, the autopsy photographs submitted as Exhibit 3 are confidential under article 49.25 of the Code of Criminal Procedure and must be withheld from disclosure under section 552.101 of the Government Code.

You argue that the information you have highlighted must be withheld under section 552.130 of the Government Code. Section 552.130 excepts from disclosure information that "relates to . . . a motor vehicle operator's or driver's license or permit issued by an agency of this state [or] a motor vehicle title or registration issued by an agency of this state." Gov't Code § 552.130. We note that the purpose of section 552.130 is to protect the privacy interests of individuals. Because the right of privacy lapses at death, Texas motor vehicle record information that pertains to a deceased individual may not be withheld under section 552.130. 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 (1984); H-917 (1976); Open Records Decision No. 272 at 1 (1981). The driver's license number you have marked in Exhibit 2 pertains to a deceased individual; therefore, the department may not withhold this information under section 552.130 of the Government Code.

Section 552.147 of the Government Code provides that "[t]he social security number of a living person is excepted from" required public disclosure under the Act. Gov't Code § 552.147. We note that, by its terms, section 552.147 is only applicable to the social security number of a living person. Therefore, the department may withhold only the social security numbers pertaining to living individuals under section 552.147 of the Government Code. ⁽³⁾

In summary, the department must withhold Exhibit 3 under section 552.101 of the Government Code in conjunction with 49.25 of the Code of Criminal Procedure. The department may withhold only the social security numbers pertaining to living individuals under section 552.147 of the Government Code. The remaining information in Exhibit 2 must be released.

This letter ruling is limited to the particular information 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 information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General at (512) 475-2497.

Sincerely,

Jennifer Luttrall

Assistant Attorney General

Open Records Division

JL/eeg

Ref: ID# 333006

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Ms. Kim K. Ogg

The Ogg Law Firm

3215 Mercer, Suite 100

Houston, Texas 77027

(w/o enclosures)

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.

2. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

3. 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.

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