Open Records Decision No. 383
May 27, 1983

	Re:  Availability of records concerning citizen's complaint about highway design 
and Highway Department employee

Mr. Mark G. Goode
Engineer-Director
State Department of Highways and Public Transportation
Dewitt C. Greer State Highway Bldg.
Austin, Texas  78701

Dear Mr. Goode:

	You have requested a decision under the Open Records Act, article 6252-17a, 
V.T.C.S.  We understand that the relevant facts are as follows:

	In 1976, the Department of Highways and Public Transportation hired a 
construction company to construct a section of Interstate Highway 10 in Kimble County, 
Texas.  Both the methods and the result of the construction caused concern among some 
of the citizens in a nearby town.  In a recent letter, a citizen of the town asked you to 
furnish him a certain report, as well as:

copies of any statements of policy, rules of procedure or instructions 
to staff made as a result of this investigation.

You have informed us that the report in question was prepared by the department's 
Internal Review and Audit Section, at your request, to assist you in making decisions 
concerning safety factors relating to this highway and the job performance of department 
personnel.

	You contend that the report is excepted from required public disclosure under 
sections 3(a)(1), 3(a)(3), and 3(a)(11) of the Open Records Act.  You have not asked us 
to consider the availability of any of the other requested information.

	Section 3(a)(3) excepts from required disclosure:

information relating to litigation of a criminal or civil nature and 
settlement negotiations, to which the state or political subdivision is, 
or may be, a party, or to which an officer or employee of the state or 
political subdivision, as a consequence of his office or employment, 
is or may be a party, that the attorney general or the respective 
attorneys of the various political subdivisions has determined should 
be withheld from public inspection.

	In this instance, the state is clearly a party to pending litigation.  This office is 
representing your department in a wrongful death action initiated by the surviving 
spouses and children of two men who died in 1977 from injuries sustained in a vehicular 
accident.  The accident occurred on a highway construction detour that connected the 
portion of Interstate Highway 10 under construction and Highway 290, which, upon 
completion of the construction, was incorporated in Interstate Highway 10 as the south 
frontage road.  This lawsuit, which was filed in 1979, alleges, inter alia, that the 
department was negligent “in designing and having constructed a detour on a major 
highway that resulted in a sharp and flat 'S' curve which could not be safely negotiated at 
a reasonable speed.”  Joyce Hudson v. State Department of Highways and Public 
Transportation, C.A. No. 391-A, pending in 198th District Court of Kimble County, 
Texas.  The assistant attorney general representing the department has determined that 
this report is relevant to the pending lawsuit and that it should be excepted from 
disclosure.

	Subsection “A” of the report discusses the design and construction of the portion 
of the highway on which the accident which prompted the present litigation occurred.  
Subsection “B” contains allegations made by the requestor concerning one of the 
department's resident supervising engineers and the department's responses thereto.  
These subsections are preceded by two subsections entitled “Background” and 
“Investigation Procedure.”

	In our opinion, it is highly likely that all of the information contained in this 
investigative report will be directly implicated in the pending lawsuit.  We therefore 
conclude that this information “relates” to this pending litigation within the meaning of 
section 3(a)(3), and that the report may, for this reason, be withheld in its entirety.

Very truly yours,

Jim Mattox
Attorney General of Texas

Tom Green
First Assistant Attorney General

David R. Richards
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

Approved:
Opinion Committee

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Nancy Sutton
Bruce Youngblood