 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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June 27, 2008 Ms. Sharon Alexander Associate General Counsel Texas Department of Transportation 125 East 11th Street Austin, Texas 78701-2483 OR2008-08722 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# 318912. Texas Department of Transportation (the "department") received a request for information relating to the Anglin Drive bridge over Tributary to Village Creek. You indicate that some of the requested information will be released. You have submitted information that the department seeks to withhold under section 552.111 of the Government Code. We have considered the exception you claim and have reviewed the submitted representative sample of information. (1) Section 552.111 of the Government Code 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. You contend that the submitted 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. 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, 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 stated 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., 965 F.2d 155, 160 (7th Cir. 1992); Robertson v. Union Pac. R.R., 954 F.2d 1433, 1435 (8th Cir. 1992); see also Pierce County v. Guillen, 123 S.Ct. 720 (2003) (upholding constitutionality of 23 U.S.C. § 409, relied on by county in denying request under state's Public Disclosure Act). You inform us that the submitted information involves a bridge that is part of the national highway system and is therefore a federal-aid highway for the purposes of section 409 of title 23. You indicate that the submitted information was compiled for highway safety purposes. (2) You contend that the information at issue would be privileged from discovery in civil litigation under section 409 and is therefore excepted from disclosure under section 552.111 of the Government Code. Based on your representations, we conclude that the department may withhold the submitted information under section 552.111. 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). If the governmental body does not file suit over 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, Amy L.S. Shipp Assistant Attorney General Open Records Division ALS/jb Ref: ID# 318912 Enc. Submitted documents c: Mr. Barry Hudson Dunaway and Associates 1501 Merrimac Circle, Suite 100 Fort Worth, Texas 76107 (w/o enclosures)
1. This letter ruling assumes that the submitted representative sample of information is truly
representative of the requested information as a whole. This ruling neither reaches nor authorizes the
department to withhold any information that is substantially different from the submitted information. See
Gov't Code §§ 552.301(e)(1)(D), .302; Open Records Decision Nos. 499 at 6 (1988), 497 at 4 (1988).
You inform us that the submitted information includes communications with an entity under contract
with the department. We note that section 552.111 can encompass a governmental body's communications with
other public and private entities. See Open Records Decision Nos. 631 at 2 (1995) (Gov't Code § 552.111
encompasses information created for governmental body by outside consultant acting at governmental body's
request and performing task that is within governmental body's authority), 563 at 5-6 (1990) (private entity
engaged in joint project with governmental body may be regarded as its consultant), 561 at 9 (1990) (statutory
predecessor to Gov't Code § 552.111 encompassed communications with party with which governmental body
has privity of interest or common deliberative process). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |