### ATTORNEY GENERAL OFTEXAS GREG ABBOTT

March 31,2003

The Honorable Michael A. Stafford Harris County Attorney 1019 Congress, 15th Floor Houston, Texas 77002- 1700 Opinion No. GA-0052 Re: Whether section 550.065(d) of the Transportation Code requires agovernmental 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” ofmaking anoncertified 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 ofthe Transportation Code requires awritten report of avehicle accident resulting in injury to or the death of aperson, or property damage of $1,000 or more, to be made by alaw enforcement officer who investigated the accident, orby the vehicle operator ifitwas 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 amunicipal 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 ofMay 27,2001,77th Leg., R.S., ch. 1422,s 1.18(a), (b), 200 1Tex. 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, toHonorable JohnComyn, 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 amotor vehicle accident held by DPS or another governmental entity. Id. 8550.065(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 asprovided by subsection (c). Id. 0550.065(b) (Vernon Supp. 2003). Subsection (c)provides that “[o]n written request and payment of any required fee,” DPS or agovernmental entity shall release the information to certain public entities, see id.fj550.065(c)(l)- (3), or to aperson who provides DPS or the governmental entity with two ormore ofthe 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 ofyour request, establishes the following fee for accident reports released under subsection (c): The fee for acopy ofthe report or accident information is $6 or the actual cost ofthepreparation ofthe copy, whichever is less. The copy may be certified by the department or the governmental entity for an additional fee of$2. The department orthe governmental entity may issue acertification 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 CODEANN. §552.262(a) (Vernon Supp. 2003). The Commission’s rules, see 1TEX.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 CODEANN. 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 ofproducing the information
. . . .” Id. The Commission’s rules define “actual cost” as

[t]he sum of all direct costs plus aproportional share of overhead or indirect costs. Actual cost should be determined in accordance with generally accepted methodologies. 1TEX.ADMIN. CODE8 111.62( 1) (2002). Under subsection 550.065(d) ofthe Transportation Code, the fee for acopy 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.CODEANN. 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 tothe extent that other law provides for charges.” TEX.GOV’T CODEANN. $ 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 anoncertified 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