|NMU||TEXAS||Freedom of Information||Nov 4, 1999|
Transit authority must turn over accident records in spite of litigation
- A promise to release records related to bus accidents precludes the transit authority from subsequently asserting an open records exemption to prevent release.
A city transit system must release records of past bus accidents to The Dallas Morning News, a Texas appeals court in Dallas ruled in early November.
The Dallas Area Rapid Transit (DART) had sought to prevent the release of the documents to the newspaper because it anticipated that they would be relevant to a lawsuit stemming from a 1997 bus accident that killed a 9-year-old Dallas girl.
The fact that DART had already promised to release documents about past accidents to the newspaper prevented it from later citing an exemption under the state’s records law to prevent the release, the Court of Appeals in Dallas ruled.
The agency should have denied the request when it was originally made and not when it was later faced with a lawsuit from the dead girl’s estate, the court ruled.
In the days and weeks following the Feb. 11, 1997, fatal accident, a reporter for the Morning News requested information from DART about that accident and other ones over the past five years. Citing the litigation exemption, DART responded on Feb. 21 that it would not release records concerning the most recent fatal accident. But it said it would release information about previous accidents.
An attorney for the dead girl’s estate made a request to DART on Feb. 26 for the same documents that the Morning News reporters had sought. The following week, the girl’s estate filed suit against DART. The agency then refused to turn over the requested documents to the newspaper.
On March 7, DART turned to the state attorney general, seeking a ruling on whether it was required to release the information about previous bus accidents that the newspaper had requested. The newspaper then filed suit in state court in Dallas seeking an order to require DART to turn over the records. The trial court ruled in favor of the newspaper.
On appeal, DART said the litigation exemption to the records law allowed it to deny the newspaper’s request. Under Texas law, a government agency has 10 days after a request to deny the request and to seek a ruling from the attorney general on whether an exemption could be used to prevent release.
DART argued that the 10-day deadline should be measured from the time the estate’s attorney requested the information and not from when the newspaper originally sought it. Furthermore, DART claimed that just because it did not originally invoke the litigation exemption against the newspaper for other bus accident records did not preclude it from later raising the exemption.
The appeals court disagreed, ruling that DART had waived its right to invoke the litigation exemption at all. It also ruled that the 10-day deadline to raise the exemption and seek an attorney general’s opinion referred to the date on which the newspaper — not the estate’s attorney — originally requested the records.
DART reasonably could have anticipated that records of previous accidents would be relevant to a lawsuit concerning the Feb. 11, 1997, accident, the appeals court said, and it should have denied the original records requests under the litigation exemption at that time.
(Dallas Area Rapid Transit v. The Dallas Morning News; Media Counsel: Terence Murphy, Dallas)
© 1999 The Reporters Committee for Freedom of the Press