December 2, 1999







Mr. Duncan R. Fox

Assistant Chief, Legal Services

Texas Department of Public Safety

P.O. Box 4087

Austin, Texas 78773-0001

OR-3487Dear Mr. Fox:



You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 129908.



The Texas Department of Public Safety ("DPS") received a request for all photographs, computer simulations, diagrams and reports in reference to the accident occurring on June 18, 1999, on IH-35 near the mile post of 275 in Williamson County. You claim that the requested information is excepted from disclosure under sections 552.103 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the accident report and supplemental accident report you have submitted.



We note that the accident and supplemental reports appear to have been completed pursuant to chapter 550 of the Transportation Code. See Transp. Code  550.064 (officer's accident report). We believe access to this information is governed by provisions outside the Public Information Act. The Seventy-fifth Legislature repealed V.T.C.S. article 6701d and amended section 550.065 of the Transportation Code concerning the disclosure of accident report information. Act of May 29, 1997, 75th Leg., R.S.ch.1187, 1997 Tex. Gen. Laws 4575, 4582-4583 (to be codified at Transp. Code  550.065). However, a Travis County district court has issued a temporary injunction enjoining the enforcement of the amendment to section 550.065 of the Transportation Code. Texas Daily Newspaper Ass'n, v. Morales, No. 97-08930 (345th Dist. Ct., Travis County, Tex., Oct. 24, 1997) (second amended agreed temporary injunction). A temporary injunction preserves the status quo until the final hearing of a case on its merits. Janus Films, Inc. v. City of Fort Worth, 358 S.W.2d 589 (1962). The supreme court has defined the status quo as "the last, actual peaceable, non-contested status that preceded the pending controversy." Texas v. Southwestern Bell Tel. Co. 526 S.W.2d 526, 528 (Tex. 1975). The status quo of accident report information prior to the enactment of S.B. 1069 is governed by section 47 of article 6701d, V.T.C.S.(1)



Section 47(b)(1) provides in pertinent part that:



The Department or a law enforcement agency employing a peace officer who made an accident report is required to release a copy of the report on request to:



(D) a person who provides the Department or the law enforcement agency with two or more of the following:



(i) the date of the accident;



(ii) the name of any person involved in the accident; or



(iii) the specific location of the accident



V.T.C.S. art. 6701d, 47(b)(1) (emphasis added). Under this provision, a law enforcement agency "is required to release" a copy of an accident report to a person who provides the law enforcement agency with two or more pieces of information specified by the statute. Id. The requestor has provided the department with the date of the accident, the names of persons involved in the accident, as well as the location of the accident. Thus, you are required to release the accident report and its supplemental report under section 47(b)(1)(D) of article 6701d, V.T.C.S.



As to the remaining information that was requested, you did not submit representative samples of the photographs, computer simulations and diagrams to this office for review. Under section 552.302, a governmental body's failure to submit to this office the information required in section 552.301(e) results in the legal presumption that the information is public and must be released. Act of May 25, 1999, 76th Leg., R.S., ch. 1319, 21, 1999 Tex. Sess. Law Serv. 4500, 4509 (Vernon) (to be codified as an amendment to Gov't Code 552.302). Information that is presumed public must be released unless a governmental body demonstrates compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make a compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code  552.302); Open Records Decision No. 319 (1982). You have not shown such a compelling interest to overcome the presumption that the photographs, computer simulations and diagrams are public. Accordingly, you must release this information.



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, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, 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 Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).



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,









Rose-Michel Munguía

Assistant Attorney General

Open Records Division



RMM\jc



Ref.: 129908



Encl.: Submitted documents



cc; Mr. David Carberry

The Littleton Group

P.O. Box 203668

Austin, Texas 78720-3668

(w/o enclosures)

1. -     - -   '