Open Records Decision No. 524
May 18, 1989

	Re:  Whether sections 3(a)(14) and 14(e) of the Open Records Act, article 
6252-17a, V.T.C.S., prohibit disclosure of student records after student's death  
(RQ-1537)

Mr. Ted J. Hajovsky, Jr.
General Counsel
Texas A & M University System
319 System Building
College Station, Texas  77843

Mr. Randel B. Gibbs
Law Offices of Earl Luna
4411 N. Central Expressway
Dallas, Texas  75205

Gentlemen:

	Texas A & M University has received a request under the Open Records Act, 
article 6252-17a, V.T.C.S., for records pertaining to a student who is now deceased.  
Carrollton-Farmers Branch Independent School District has also received a request for 
the records of a deceased student.  Texas A & M has submitted the requested records to 
us.  The records requested of the school district are in storage and have not been located 
yet.  You cite sections 3(a)(14) and 14(e) of the Open Records Act as preventing 
disclosure of these records.

	Section 3(a)(14) excepts the following records from disclosure under the Open 
Records Act:

	(14)	student records at educational institutions funded wholly, 
or in part, by state revenue; but such records shall be made available 
upon request of educational institution personnel, the student 
involved, that student's parent, legal guardian, or spouse or a person 
conducting a child abuse investigation required by Section 34.05, 
Family Code . . . .

V.T.C.S. art. 6252-17a, § 3(a)(14).

	Section 14(e) of the Open Records Act provides as follows:

	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, as enacted by 
Section 513 of Public Law 93-380, codified as Title 20 U.S.C.A. 
Section 1232g, as amended.

Id. § 14(e).

	The Family Educational Rights and Privacy Act (FERPA) provides that no 
federal funds will be made available to an educational institution that permits the release 
of education records of students without the written consent of their parents to any 
individual, agency, or organization other than those specifically designated therein.  20 
U.S.C. § 1232g(b)(1).  When a student has attained eighteen years of age, or is attending 
an institution of postsecondary education, the student has the sole authority to consent.  
Id. § 1232g(d).  This statute applies to students who formerly attended an educational 
institution as well as students presently in attendance.  Id. § 1232g(a)(6); 34 C.F.R. 
§ 99.3; Open Records Decisions Nos. 462 (1987); 157, 151 (1977).

	Texas A & M University and public schools in Texas receive federal funding and 
are subject to the requirements of FERPA.  See, e.g., Vandiver v. Star-Telegram, Inc., 
756 S.W.2d 103 (Tex. App.--Austin 1988, no writ); General Appropriations Act, Acts 
1987, 70th Leg., 2d C.S., ch. 78, at 632.  The records requested in this case are education 
records within the Family Educational Rights and Privacy Act and may be released only 
in accordance with the provisions of that act.  Attorney General Opinion MW-565 (1982) 
(whether files of students at state university are available to federal Department of 
Labor); see Open Records Decision No. 431 (1985) (information covered by FERPA 
may not be withheld from student under litigation exception of Open Records Act).

	The Secretary of Education has directed the Family Policy and Regulations 
Office, United States Department of Education, to provide technical assistance to ensure 
compliance with the Act.  34 C.F.R. § 99.60(b)(2).  We referred your question to the 
director of the Family Policy and Regulations Office and received the following response 
to our letter:

FERPA restrictions on disclosure of education records do not 
remain applicable to the records after the death of the student to 
whom they relate.  Consistent with common law regarding privacy 
rights, the privacy interests of an individual expire with his or her 
death.

Accordingly, FERPA does not prevent you from making the education records of 
deceased students available to members of the public.

	We next consider the application to such records of section 3(a)(14) of the Open 
Records Act, which excepts from public disclosure "student records at educational 
institutions funded wholly, or in part, by state revenue."  Although the purpose for 
section 3(a)(14) is similar to that of section 14(e), the provisions are not co-extensive.  
The scope of section 3(a)(14) is a question of statutory construction.  Attorney General 
Opinion 
JM-851 (1988) (no general rule that statutory confidentiality provisions lapse on the 
death of the person to whom the confidential records pertain); see Attorney General 
Opinion JM-229 (1984) (Medical Practices Act implicitly makes physician-patient 
records confidential after patient's death).

	The Open Records Act excepts from public inspection "information deemed 
confidential by law," including judicial decisions recognizing the right of privacy, and 
"information in personnel files, the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy . . . ."  V.T.C.S. art. 6252-17a, §§ 3(a)(1), (2).  
In Attorney General Opinion H-917 (1976) this office considered whether the 
confidentiality which subsections 3(a)(1) and 3(a)(2) provide for private information 
about an individual lapsed upon that individual's death.  The opinion cited authorities 
establishing that the right of privacy is personal to the individual and cannot be asserted 
by anyone else and concluded that the confidentiality accorded by these subsections to 
private information in governmental records lapsed upon the death of the person who 
was the subject of records.

	The exception for student records in section 3(a)(14) was included in the Open 
Records Act out of concern that section 3(a)(2), the "personnel file" exception, would not 
cover the confidential information found in student records.  See Comment, The Texas 
Open Records Act:  A Section-By-Section Analysis, 14 Hous. L. Rev. 398, 420 n.184 
(1977).  Thus, section 3(a)(14) derives from the same common law privacy right 
incorporated in section 3(a)(2) of the Open Records Act but extends its protection to a 
broad class of records that might not be confidential in its entirety under common law.  
Based on this legislative history, and on the federal interpretation of the Family 
Education Rights and Privacy Act, we believe that the confidentiality accorded student 
records by section 3(a)(14) terminates on the death of the person who was the subject of 
the records.  Accordingly, the records of deceased students that have been requested are 
not excepted from public disclosure by section 3(a)(14) of the Open Records Act and 
must be provided to the requestor.

	It is possible that particular records include student record information about a 
living person as well as a deceased person.  In that case, the records should be edited to 
avoid disclosure of the student record information about a living person, which is still 
protected by section 3(a)(14).  We have marked the records submitted by Texas A & M 
University to show which documents may not be disclosed.

SUMMARY

	The confidentiality accorded student records by section 3(a)(14) 
of article 6252-17a, V.T.C.S., the Texas Open Records Act, and by 
the federal Family Education Rights and Privacy Act, 20 U.S.C. 
§ 1232g, terminates upon the death of the student.

Very truly yours,

Jim Mattox
Attorney General of Texas

Mary Keller
First Assistant Attorney General

Lou McCreary
Executive Assistant Attorney General

Judge Zollie Steakley
Special Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Jennifer S. Riggs
Chief, Open Government Section
Opinion Committee

Prepared by

Susan L. Garrison
Assistant Attorney General