Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 3 1,2003

The Honorable Michael A. Stafford Opinion No. GA-0052
Harris County Attorney
1019 Congress, 15th Floor Re: Whether section 550.065(d) of the
Houston, Texas 77002- 1700 Transportation Code requires a governmental
body to use the guidelines established by
the Texas Building and Procurement
Commission when calculating the “actual
cost” of making a noncertified copy of an
accident report (RQ-06 11 -JC)

Dear Mr. Stafford:

You ask whether Transportation Code section 550.065(d) requires governmental agencies
to use the guidelines established by the Texas Building and Procurement Commission (“the
Commission”) pursuant to the Texas Public Information Act to calculate the “actual cost” of making
a noncertified copy of an accident report.* See TEX. GOV’T CODE ANN. 8 552.262 (Vernon Supp.
2003) (authorizing Texas Building and Procurement Commission, to adopt rules for governmental
bodies to use in determining charges for records).

Chapter 550, subchapter D of the Transportation Code requires a written report of a vehicle
accident resulting in injury to or the death of a person, or property damage of $1,000 or more, to be
made by a law enforcement officer who investigated the accident, or by the vehicle operator if it was
not investigated by a law enforcement officer. See TEX. TRANSP. CODE ANN. $9 550.061(a),
550.062(a) (Vernon Supp. 2003). The report must be filed with the Department of Public Safety
(“DPS”) no later than the tenth day after the accident. See id. 89 550.061(b), 550.062(b). A
municipality may by ordinance require an accident report to be filed with a municipal department.
See id. 8 550.067 (Vernon 1999).

‘The Seventy-seventh Texas Legislature abolished the General Services Commission and created the Texas
Building and Procurement Commission, to which the legislature generally assigned the powers and duties that previously
had been assigned to the General Services Commission. See Act of May 27,2001,77th Leg., R.S., ch. 1422,s 1.18(a),
(b), 200 1 Tex. Gen. Laws 502 1,5025. The name “Texas Building and Procurement Commission” will be used instead
of “General Services Commission” in this opinion.

2see Letter and Brief from Honorable Michael A. Stafford, Harris County Attorney, to Honorable John Comyn,
Texas Attorney General (Sept. 17,2002) (on file with Opinion Committee) [hereinafter Stafford Brief].
The Honorable Michael A. Stafford - Page 2 (GA-0052)

Transportation Code section 550.065 governs the release of information relating to a motor
vehicle accident held by DPS or another governmental entity. Id. 8 550.065(a), (c) (Vernon Supp.
2003); see id. $3 550.061-.64, 601.004 (Vernon 1999 & Supp. 2003) (accident reports subject to
Transportation Code section 550.065). Subsection 550.065(b) states that the information is for the
confidential use of DPS and federal, state, and local entities that have “use for the information for
accident prevention purposes,” except as provided by subsection (c). Id. 0 550.065(b) (Vernon Supp.
2003). Subsection (c) provides that “[o]n written request and payment of any required fee,” DPS or
a governmental entity shall release the information to certain public entities, see id. fj 550.065(c)(l)-
(3), or to a person who provides DPS or the governmental entity with two or more of the following:

(A) the date of the accident;

(B) the specific address or the highway or
street where the accident occurred; or

(C) the name of any person involved in the
accident.

Id. 8 550.065(c)(4).

Subsection (d) of section 550.065, the subject of your request, establishes the following fee
for accident reports released under subsection (c):

The fee for a copy of the report or accident information is $6
or the actual cost of the preparation of the copy, whichever is less.
The copy may be certified by the department or the governmental
entity for an additional fee of $2. The department or the governmental
entity may issue a certification that no report or information is on file
for a fee of $6.

Id. 8 550.065(d) (emphasis added).

Subsection (d) does not define “actual cost,” and its language has been subject to varying
interpretations among law enforcement agencies.3 Some governmental entities that hold accident
reports are highly automated and able to prepare copies quickly and efficiently, while others are not
yet automated. See Commission Brief, supra note 3. The question has arisen whether subsection
(d) requires governmental agencies to use the guidelines established by the Commission under the
Texas Public Information Act to calculate the “actual cost” of making a noncertified copy .of an
accident report. See Stafford Brief, supra note 2.

3See Stafford Brief, supra note 2; see also Brief from Hadassah S&loss, Open Records Administrator, Texas
Building & Procurement Comrnission, to Susan Denmon Gusky, Chair, Office of Attorney General (Nov. 8,20!2) (on
file with Opinion Committee) [hereinafter Commission Briefj.
The Honorable Michael A. Stafford - Page 3 (GA-0052)

The Public Information Act provides in section 552.262 of the Government Code that the
Commission “shall adopt rules for use by each governmental body in determining charges for
providing copies of public information under . . . subchapter [F of chapter 5521.” TEX. GOV’T
CODE ANN. § 552.262(a) (Vernon Supp. 2003). The Commission’s rules, see 1 TEX. ADMIN. CODE
$8 111.61-.71(2002), are to be used by each governmental body to determine charges for providing
copies of public information, “except to the extent that other law provides for charges for specific
kinds of public information.” TEX. GOV’T CODE ANN. 0 552.262(a) (Vernon Supp. 2003). “The
charges for providing copies of public information may not be excessive and may not exceed the
actual cost of producing the information . . . .” Id. The Commission’s rules define “actual cost” as

[t]he sum of all direct costs plus a proportional share of overhead or
indirect costs. Actual cost should be determined in accordance with
generally accepted methodologies.

1 TEX. ADMIN. CODE 8 111.62( 1) (2002).

Under subsection 550.065(d) of the Transportation Code, the fee for a copy of the accident
report is $6 or the actual cost of copying the report, whichever is less, but section 550.065 does not
define “actual cost.” See TEX. TRANSP. CODE ANN. 9 550.065 (Vernon Supp. 2003). Section
552.262(a) of the Government Code directs governmental bodies to the Commission’s rules to
determine charges for records “except to the extent that other law provides for charges.” TEX. GOV’T
CODE ANN. $ 552.262(a) (Vernon Supp. 2003). Governmental bodies must use the definition of
“actual cost” stated in the Commission’s rules, subject to the limit of $6 established by section
550.065(d) of the Transportation Code.
The Honorable Michael A. Stafford - Page 4 (GA-0052)

SUMMARY

Section 550.065(d) of the Transportation Code provides that
the fee for copies of accident reports and accident information is $6
or the actual cost of preparing the copy, whichever is less. Because
section 550.065 does not define “actual cost,” governmental agencies
must use the Texas Building and Procurement Commission’s
guidelines under the Public Information Act to calculate the “actual
cost” of making a noncertified copy of an accident report subject to
the limit of $6 established by the Transportation Code.

Very truly yours,

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee