March 26, 2012

Mr. W. Montgomery Meitler

Assistant Counsel

Texas Education Agency

1701 North Congress Avenue

Austin, Texas 78701

OR2012-04381

Dear Mr. Meitler:

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# 448540 (TEA PIR# 16753).

The Texas Education Agency (the "agency") received a request to view any correspondence between (1) a named individual and specified agency employees and (2) the named individual and the State Board of Education for a specified time period. You state a portion of the responsive information will be released to the requestor. Although you take no position as to whether the submitted information is excepted under the Act, you inform us release of this information may implicate the proprietary interests of Stevenson Capital Wealth Management, L.L.C. ("Stevenson"). Accordingly, you notified Stevenson of the request for information and of the company's right to submit arguments to this office as to why the submitted information should not be released. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Act in certain circumstances). We have received comments from an attorney representing Stevenson. We have considered the submitted arguments and reviewed the submitted information.

Stevenson raises section 552.143 of the Government Code for portions of the submitted information. This section provides in part that "[a]ll information prepared or provided by a private investment fund and held by a governmental body that is not listed in [s]ection 552.0225(b) [of the Government Code] is confidential and excepted from [required public disclosure]." Gov't Code § 552.143(a). Section 552.143(d)(1) defines a private investment fund as "an entity, other than a governmental body, that issues restricted securities to a governmental body to evidence the investment of public funds for the purpose of reinvestment." Id. § 552.143(d)(1); see also id. § 552.143(d)(3) ("'Restricted securities' has the meaning assigned by 17 C.F.R. [s]ection 230.144(a)(3)."). Stevenson states it submitted the information at issue for the agency's consideration of "potential investments in private, non-registered securities." Stevenson does not represent, and we are unable to determine, that the company issues restricted securities to a governmental body to evidence the investment of public funds for the purpose of reinvestment. Consequently, we find Stevenson has failed to demonstrate it is a private investment fund for purposes of section 552.143. We therefore conclude the agency may not withhold any of the submitted information under section 552.143 of the Government Code.

We note that portions of the submitted information are subject to section 552.136 of the Government Code. ⁽¹⁾ This section provides that "[n]otwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Id. § 552.136(b), see also id. § 552.136(a) (defining "access device"). This office has determined that insurance policy numbers are subject to section 552.136. Accordingly, the agency must withhold the insurance policy numbers we have marked under section 552.136 of the Government Code.

We also note that some of the submitted information may be protected by copyright. A custodian of public records must comply with the copyright law and is not required to furnish copies of records that are copyrighted. See Open Records Decision No. 180 at 3 (1977). A governmental body must allow inspection of copyrighted materials unless an exception applies to the information. See id.; see also Open Records Decision No. 109 (1975). If a member of the public wishes to make copies of copyrighted materials, the person must do so unassisted by the governmental body. In making copies, the member of the public assumes the duty of compliance with the copyright law and the risk of a copyright infringement suit.

In summary, the agency must withhold the insurance policy numbers we have marked under section 552.136 of the Government Code. The agency must release the remaining information, but any information protected by copyright may only be released in accordance with copyright law.

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, toll free at (888) 672-6787.

Sincerely,

Kenneth Leland Conyer

Assistant Attorney General

Open Records Division

KLC/dls

Ref: ID# 448540

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Stevenson Capital Wealth Management, L.L.C.

c/o Mr. Kevin O'Hanlon

O'Hanlon, McCollum & Demerath

808 West Avenue

Austin, Texas 78701

(w/o enclosures)

Footnotes

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

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