Open Records Decision No. 390
July 26, 1983

	Re:  Availability to public of investigative report on Educational Incentive Pay 
Program of city of Fort Worth

Mr. Wade Adkins
City Attorney
1000 Throckmorton
Fort Worth, Texas  76102

Dear Mr. Adkins:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., regarding the availability of an investigative report on the Educational 
Incentive Pay Program of the city of Fort Worth.  The information at issue consists of 
two reports, and attachments.  You suggest that portions of the material are excepted 
from disclosure by sections 3(a)(1), (2), (11), and (14) of the Open Records Act, which 
except:

	(1)	information deemed confidential by law, either 
Constitutional, statutory, or by judicial decision;

	(2)	information in personnel files, the disclosure of which 
would constitute a clearly unwarranted invasion of personal 
privacy . . .;

	. . . .

	(11)	inter-agency or intra-agency memorandums or letters 
which would not be available to a party other than one in litigation 
with the agency; and

	. . . .

	(14)	student records at educational institutions funded wholly, 
or in part, by state revenue; . . .

In addition, section 14(e) of the Act provides:

Nothing in this Act shall be construed to require the release of 
information contained in education records of any educational 
agency or institution except in conformity with the provisions of the 
Family Educational Rights and Privacy Act of 1974. . . Title 20 
U.S.C.A. Section 1232g, as amended.

We conclude that certain portions of the material may be withheld from disclosure under 
section 3(a)(11) of the Act, but that the remainder is required to be disclosed.

	You first contend that both reports and the accompanying attachments contain 
information protected by a right of common law privacy under section 3(a)(1) or by 
employee privacy under section 3(a)(2).  In our opinion, none of the information may be 
so characterized.  You suggest, however, that some of the material may be excepted by 
“false light” privacy.  In Open Records Decision No. 372 (1983), we said that:

a governmental body may withhold information on the basis of false 
light privacy, only if it finds, based upon the weight of evidence 
demonstrable to this office, that there is serious doubt about the 
truth of the information.  In addition, the information must be highly 
offensive to a reasonable person and the public interest in disclosure 
must be minimal.

In your brief, you state:

There is insufficient evidence to permit the conclusion that the 
custodian of the information in fact entertains, or does not entertain 
serious doubts as to the truth of the information.

On the basis of the standard set forth in Open Records Decision No. 372, we must 
conclude that none of the information here is excepted from disclosure by false light 
privacy.

	You also contend that all documents relating to college credit earned by the police 
officers under investigation are excepted by sections 3(a)(14) and 14(e).  The Family 
Educational and Privacy Rights Act of 1974, 20 U.S.C., section 1232g (the Buckley 
Amendment), denies federal funds to any institution that releases personally identifiable 
“education records” to anyone but specified individuals.  Education records are broadly 
defined as those records that “(1) [a]re directly related to a student, and (2) are 
maintained by an educational agency . . .”  45 C.F.R. section 99.3 (1976).  See Open 
Records Decision No. 193 (1978).  Since sections 3(a)(14) and 14(e) except documents 
relating to college credit only when such documents are in the custody of an “educational 
agency” and since the city of Fort Worth is not an “educational agency” within the 
meaning of the Buckley Amendment, we conclude that the information at issue here is 
not excepted from disclosure by sections 3(a)(14) or 14(e).

	As to your claim under section 3(a)(11), this provision has consistently been 
construed to except that material which consists of “advice, opinion and 
recommendation.”  See Open Records Decision Nos. 335, 331, 328 (1982).  You have 
marked those portions of the reports and the attachments which you contend are excepted 
by section 3(a)(11).  In our opinion, only one of those portions marked in Report No. 1, 
on page 4, and none of those marked in the attachments thereto may be so characterized.  
As to Report No. 2, those portions you have marked on pages 1, 8, 10, 12, 15, and 16 are 
excepted, but none of the marked portions on pages 17-46 may be withheld except for 
those we have marked on pages 30, 34, 36, 41 and 43.  All of pages 47-56, labeled 
“conclusions” and “recommendations,” may be withheld.  As to the attachments to 
Report No. 2, only the following may be excepted:  pages 5-9, and the marked yellow 
portions on pages 170, 172, 175, 184, 187, 188, 191, 201, 202, 210, 214, 215, 221, 227, 
229, 237, 241, 242 and 247.  No other portions of the attachments to Report No. 2 may 
be withheld.

Very truly yours,

Jim Mattox
Attorney General of Texas

Tom Green
First Assistant Attorney General

David R. Richards
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

Approved:
Opinion Committee

Rick Gilpin, Acting Chairman
Jon Bible
Colin Carl
Jim Moellinger
Nancy Sutton
Bruce Youngblood