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Office of the Attorney General - State of Texas John Cornyn |
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April 17, 2001 Ms. Myra A. McDaniel
OR2001-1514 Dear Ms. McDaniel: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 146205. The Austin Community College (the "college"), which you represent, received a request for a copy of Dr. Fonte's performance evaluation by the Board of Trustees as well as all consultation contracts approved by the board since Dr. Fonte became president of the college, the purpose of the consultation, and the amount of consulting fees. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.111 of the Government Code. In your letter to the requestor, you state that you will be providing the remaining requested information. We have considered the exceptions you claim and reviewed the submitted information. You state that the actual performance evaluation was a verbal discussion between the Board of Trustees and the college president that was not reduced to writing. You have submitted a memorandum prepared by the president of the Board of Trustees that summarizes some of the issues discussed during the president's evaluation and assert that this is the only document that might be responsive to the request. The Public Information Act (the "Act") only applies to information in existence. See Gov't Code §§ 552.002, .021, .227, .351. The Act does not require a governmental body to prepare new information in response to open records requests. Open Records Decisions Nos. 452 (1986), 342 (1982). However, a governmental body must make a good faith effort to relate a request for information to information that it holds. Id. Although you claim that the submitted memorandum is not responsive to the request, it appears to summarize the performance evaluation of the college president and, therefore, is responsive to the request. Therefore, we will consider your claimed exceptions. You claim that the memorandum is excepted under section 552.101 in conjunction with section 21.355 of the Education Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by statute. Section 21.355 of the Education Code provides, "A document evaluating the performance of a teacher or administrator is confidential." You assert that this provision is applicable to a community college by virtue of section 130.084 of the Education Code. Section 130.084 reads as follows: The board of trustees of junior college districts shall be governed in the establishment, management and control of the junior college by the general law governing the establishment, management and control of independent school districts insofar as the general law is applicable. Educ. Code § 130.084. By its terms, section 130.084 affects only the authority of junior college trustees to direct a junior college. See San Antonio Union Junior College Dist. v. Daniel, 206 S.W.2d 995 (Tex. 1947). Thus, this office has applied section 130.084 and its predecessor to confer various school district powers on junior college trustees. See, e.g., Attorney General Opinions DM-178 (1992) (power to borrow money secured by delinquent maintenance tax revenues under Educ. Code § 20.45), M-878 (1971) (power to issue time warrants to repair, renovate, and equip school buildings under Educ. Code § 20.43), M-700 (1970) (power to exercise right of eminent domain under Educ. Code § 23.31). However, we do not believe that a statute that makes certain information confidential, such as section 21.355 of the Education Code, bears on the trustees' direction of a junior college or in any way confers power on those trustees. Thus, section 21.355 does not affect the junior college's trustees' authority to direct the college. Furthermore, we do not believe section 21.355 is a general law that is "applicable" to colleges through section 130.084. Section 21.355 is part of subchapter H of the Education Code, which sets forth the appraisal processes that relate to the accountability of public schools providing compulsory public education. We believe subchapter H is applicable only to public school districts and not to junior colleges. Accordingly, the college may not withhold the memorandum under section 21.355 of the Education Code. You also claim that the memorandum is excepted under section 552.111 of the Government Code. Section 552.111 excepts from required public disclosure interagency and intra-agency memoranda and letters, but only to the extent that they contain advice, opinion, or recommendation intended for use in the entity's policymaking process. Texas Dep't of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.-Austin 1992, no writ); Open Records Decision No. 615 at 5 (1993). The purpose of this section is "to protect from public disclosure advice and opinions on policy matters and to encourage frank and open discussion within the agency in connection with its decision-making processes." Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.-San Antonio 1982, writ ref'd n.r.e.) (emphasis added). However, an agency's policymaking functions do not encompass internal administrative or personnel matters, as disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. See City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000); Lett v. Klein Indep. Sch. Dist., 917 S.W.2d 455 (Tex. App.-Houston [14th Dist.] 1996, writ denied) (records relating to problems with specific employee do not relate to making of new policy but merely implement existing policy); Open Records Decision No. 615 at 5-6 (1993). But see Open Records Decision No. 631 (1995) (finding personnel matters of a broader scope were excepted from disclosure under section 552.111). After reviewing the submitted memorandum, we conclude that it relates to personnel matters rather than to the college's policymaking functions. Accordingly, the memorandum is not protected under section 552.111. As you have not demonstrated that the memorandum is excepted under either section 552.101 or section 552.111, we conclude that you must release the memorandum to the requestor. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, Jennifer H. Bialek
JHB/rr Ref: ID# 146205 Encl: Submitted documents cc: Mr. Evan L. Butcher
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |