 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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March 26, 2009 Ms. Sharon Alexander Associate General Counsel Texas Department of Transportation 125 East 11th Street Austin, Texas 78701-2483 OR2009-03888 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# 339194. The Texas Department of Transportation (the "department") received a request for fourteen categories of information pertaining to a specific project adjacent to Highway 59. You claim that the submitted information is excepted from disclosure under section 552.111 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information. (1) Initially, we note that you have only submitted a representative sample of traffic control devices inspection reports, responsive to category twelve of the request, for our review. We assume that, to the extent information responsive to the remaining thirteen categories of the request existed when the department received the request for information, you have released it to the requestor. If not, then you must do so at this time. See Gov't Code §§ 552.006, 552.301, 552.302; Open Records Decision No. 664 (2000). We next note that the submitted reports are subject to section 552.022 of the Government Code, which enumerates categories of information that are not excepted from required disclosure unless they "are expressly confidential under other law." Under section 552.022(a)(1), a completed report, audit, evaluation, or investigation made of, for, or by a governmental body is expressly public unless it either is excepted under section 552.108 of the Government Code or is expressly confidential under other law. Thus, the department may only withhold this information if it is confidential under other law. Section 552.111 of the Government Code is a discretionary exception and therefore not "other law" for purposes of section 552.022. See Open Records Decision No. 470 at 7 (1987) (statutory predecessor to section 552.111 may be waived). However, the department also contends the submitted information is excepted from disclosure under section 409 of title 23 of the United States Code, which 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 148 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., 965 F.2d 155, 160 (7th Cir. 1992); Robertson v. Union Pac. R.R., 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 state that the information at issue was "created for the purpose of identifying and evaluating hazards on public roads." You also inform us that the roadway at issue is part of the National Highway System under section 103 of title 23 of the United States Code, and is therefore a federal-aid highway within the meaning of section 409. Furthermore, the department states that section 409 of title 23 would protect the information at issue from discovery in civil litigation. Based upon your representations and our review, we conclude that the department may withhold the information at issue pursuant to section 409 of title 23 of the United States Code. 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, Ana Carolina Vieira Assistant Attorney General Open Records Division ACV/eb Ref: ID# 339194 Enc. Submitted documents c: Requestor (w/o enclosures)
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. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |