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John Cornyn

November 15, 1999

Ms. Joanne Wright
Associate General Counsel
Texas Department of Transportation
125 East 11th Street
Austin, Texas 78701-2483


Dear Ms. Wright:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 129376.

The Texas Department of Transportation ("TXDOT") received a request for the following items related to a fatality accident:

construction bids for the accident site;

investigation file;

contracts between the state and Zumwalt Construction;

third party agreements relating to construction, supervision or safety at the accident site;

reports and photographs of any on-sight inspections of the accident site; and

correspondence related to the accident.

You claim that the requested information is excepted from disclosure under section 552.103 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Section 552.103(a), the "litigation exception," excepts from disclosure information relating to litigation to which the state or a political subdivision is or may be a party. The governmental body claiming this exception has the burden of providing relevant facts and documents to show that the section 552.103(a) exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). Further, to be excepted under section 552.103, the information must relate to litigation that is pending or reasonably anticipated on the date that the information was requested. Gov't Code 552.103(c).(1)

The subject request for information is date stamped as received by TXDOT on August 30, 1999. You have provided a notice of claim letter, date stamped as received by TXDOT on April 30, 1999. This claim regards the subject fatality accident and was sent by representatives of the deceased. You acknowledge that this claim complies with the notice requirements of Chapter 101 of the Civil Practices and Remedy Code, the Texas Tort Claims Act. You have thereby established that litigation was reasonably anticipated at the time the request for information was received. See Open Records Decision No. 638 (1996) (fact that governmental body received claim letter that it represents to this office to be in compliance with notice requirements of Texas Tort Claims Act, Civ. Prac. & Rem. Code ch. 101, or applicable municipal ordinance shows that litigation is reasonably anticipated). We have reviewed the submitted information and conclude that it relates to this anticipated litigation. We conclude that the subject information may generally be withheld pursuant to Government Code section 552.103.

However, absent special circumstances, where the opposing party to the anticipated litigation has had access to the records at issue, no section 552.103(a) interest exists with respect to that information. Open Records Decision Nos. 349 (1982), 320 (1982). If the opposing parties in the anticipated litigation have seen or had access to any of the information in these records, there is no justification for now withholding that information from the requestor pursuant to section 552.103(a). Also note that the applicability of section 552.103(a) ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).

The 76th Legislature amended the Public Information Act, creating section 552.022 , which requires certain defined classes of information to be released unless expressly made confidential by law outside the Public Information Act.(2) In pertinent part this section reads

(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:

(1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108;

. . .

(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;

. . .

The submitted materials include a draft of a contract between the State of Texas and H.L. Zumwalt Construction, Inc. (the "Zumwalt contract"). The draft is not executed, but other submitted materials indicate that such a contract was executed. The executed contract as well as the document titled "Traffic Control Devices Inspection Report" appear to be information in an account, voucher, or contract relating to the receipt or expenditure of public funds by a governmental body. The included document titled "Plans of Proposed State Highway Improvement, appears to be a completed report, audit, evaluation, or investigation made by a governmental body. The submitted engineer's estimate and bid summary appears to be a working paper, or information used to estimate the need for or expenditure of public funds by a governmental body, and this estimate appears to be complete. None of these materials are expressly made confidential by law outside the Public Information Act. Therefore, to the degree that this information is subject to section 552.022, it must be released.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.


Michael J. Burns
Assistant Attorney General
Open Records Division


Ref: ID# 129376

Encl. Submitted documents

cc: Mr. Daniel Sciano
Tinsman & Houser
700 North St. Mary's Street, 14th Floor
San Antonio, Texas 78205
(w/o enclosures)



1. Act of May 25, 1999, 76th Leg., R.S., ch. 1319, 6, 1999 Tex. Sess. Law Serv. 4500, 4502 (Vernon) (effective September 1, 1999).

2. Act of May 25, 1999, 76th Leg., R.S., ch. 1319, 5, 1999 Tex. Sess. Law Serv. 4500, 4501 (Vernon) (effective September 1, 1999)

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