 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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November 29, 2006 Ms. Sharon Alexander OR2006-13977 Dear Ms. Alexander: 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#265740. The Texas Department of Transportation (the "department") received a request for the department's file pertaining to railroad crossing 450-512-H Anderson County 172. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we note that portions of the submitted information are made expressly public under section 552.022 of the Government Code. Section 552.022 provides, in relevant part: (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: . . . (3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[.] . . . (5) all working papers, research material, and information used to estimate the need for or expenditure of public funds or taxes by a governmental body, on completion of the estimate[.] Gov't Code § 552.022(a)(3), (5). Some of the submitted documents, which we have marked, are subject to sections 552.022(a)(3) and 552.022(a)(5) of the Government Code. Therefore, the department may only withhold these documents if they are confidential under "other law." Section 552.111 of the Government Code is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See Open Records Decision No. 470 at 7 (1987) (statutory predecessor to section 552.111 may be waived). As such, section 552.111 is not "other law" that makes information confidential for the purposes of section 552.022. Accordingly, the department may not withhold the documents that are subject to section 552.022 pursuant to section 552.111 of the Government Code. You also contend, however, that the documents subject to section 552.022 of the Government Code are confidential under section 409 of title 23 of the United States Code. Section 409 provides as follows: Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying [sic] evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data. 23 U.S.C. § 409. Federal courts have determined that section 409 excludes from evidence data compiled for purposes of highway and railroad crossing safety enhancement and construction for which a state receives federal funding, in order to facilitate candor in administrative evaluations of highway safety hazards and to prevent federally-required record-keeping from being used for purposes of private litigation. See Harrison v. Burlington N. R.R. Co., 965 F.2d 155, 160 (7th Cir. 1992); Robertson v. Union Pac. R.R. Co., 954 F.2d 1433, 1435 (8th Cir. 1992). We agree that section 409 of title 23 of the United States Code is other law for purposes of section 552.022(a) of the Government Code. See In re City of Georgetown , 53 S.W.3d 328 (Tex. 2001); see also Pierce County v. Guillen, 123 S.Ct. 720 (2003) (upholding constitutionality of section 409, relied upon by county in denying request under state's Public Disclosure Act). You inform us that "[r]ailway-highway crossings are always eligible for federal aid under 23 U.S.C. § 130 and therefore are federal-aid highways within the meaning of 23 U.S.C. § 409." You further assert that section 409 of title 23 would protect the documents at issue from discovery in civil litigation. Based upon your representations and our review of the information at issue, we conclude that the department must withhold the information subject to section 552.022 pursuant to section 409 of title 23 of the United States Code. We now address your section 552.111 claim for the remaining information, which is not subject to section 552.022 of the Government Code. This section excepts from disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." Gov't Code § 552.111. We note that section 552.111 of the Government Code protects communications with third parties with which the department shares a privity of interest or common deliberative process. Open Records Decision Nos. 464 (1987), 429 (1985); see also Wu v. National Endowment of the Humanities, 460 F.2d 1030 (5th Cir.), cert. denied, 410 U.S. 926 (1972). You contend that the remaining information is excepted from disclosure under section 552.111 because it would be privileged from discovery under section 409 of title 23 of the United States Code. Based upon your representations and our review of the information at issue, we conclude that the department may withhold the remaining information under section 552.111 of the Government Code. In summary, the department must withhold the documents subject to section 552.022 of the Government Code pursuant to section 409 of title 23 of the United States Code. The department may withhold the remaining information under section 552.111 of the Government Code. 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 appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, 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 appeal 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, Holly R. Davis Assistant Attorney General Open Records Division HRD/krl Ref: ID# 265740 Enc. Submitted documents c: Mr. Ricky Pope Smith Weber, L.L.P. P. O. Box 6167 Texarkana, Texas 75505 (w/o enclosures)
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