 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 22, 2012 Ms. Sharon Alexander Associate General Counsel Texas Department of Transportation 125 East 11th Street Austin, Texas 78701-2483 OR2012-02778 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# 447638. The Texas Department of Transportation (the "department") received a request for ten categories of information pertaining to an automobile accident and a specified location. You state you have released some of the requested information. You claim that the remaining information is excepted from disclosure under section 552.111 of the Government Code and section 409 of title 23 of the United States Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information. (1) We note the submitted information consists entirely of Traffic Control Devices Inspection Checklists. This information is subject to section 552.022 of the Government Code. Section 552.022 provides, in relevant part, as follows: (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 unless made confidential under this chapter or other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108. Gov't Code § 552.022(a)(1). The submitted information is subject to section 552.022(a)(1). You seek to withhold the submitted information under section 552.111 of the Government Code. However, section 552.111 is discretionary in nature and does not make information confidential under the Act. See Act of May 30, 2011, 82nd Leg., R.S., S.B. 602, §§ 3-21, 23-26, 28-37 (providing for "confidentiality" of information under specified exceptions); see also Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 470 at 6-7 (1987) (statutory predecessor to section 552.111 subject to waiver). Therefore, the submitted information may not be withheld under section 552.111. However, the department also contends that this 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. 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 indicate that the submitted information was created by the department for highway safety purposes. You also inform us that U.S. Highway 80 is part of the National Highway System under section 103 of title 23 of the United States Code and, therefore, is a federal-aid highway within the meaning of section 409. Furthermore, you state that section 409 of title 23 would protect the information at issue from discovery in civil litigation. Thus, based upon your representations and our review of the information at issue, we conclude the department may withhold the submitted information 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, toll free at (888) 672-6787. Sincerely, Charles Galindo Jr. Assistant Attorney General Open Records Division CG/som Ref: ID# 447638 Enc. Submitted documents c: Requestor (w/o enclosures) Footnotes1. 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 |