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Office of the Attorney General - State of Texas John Cornyn |
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May 30, 2001 Mr. Scott A. Kelly
OR2001-2234 Dear Mr. Kelly: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 147760. Texas A&M International University (the "university") received a request for the following five categories of information pertaining to a named student: 1. Roster of all students who attended classes with Alina Aizenberg during the 1999 and 2000 school years and a description of each student's major. 2. Roster of all students for the Spring-Summer-Fall 1999-2000 semesters who majored in psychology and are doing, were doing, have transferred, or have completed their master in psychology. 3. E-mail address for 1999-2000 school years. 4. Attendance sheets for the 1999-2000 school years. 5. Schedules for the 1999-2000 school years. You inform us that the university does not maintain records relating to categories three and four of the request. Chapter 552 of the Government Code does not require a governmental body to make available information which did not exist at the time the request was received. Open Records Decision No. 362 (1983); see Open Records Decision No. 452 (1986) (document not within chapter 552's purview if it does not exist when governmental body receives a request for it). Nor is a governmental body required to prepare new information to respond to a request for information. Open Records Decision No. 605 (1992), 572 (1990), 416 (1984). However, a governmental body has a duty to make a good faith effort to relate a request for information to information the governmental body holds. Open Records Decision No. 561 at 8 (1990). With regard to the remainder of the requested information, you informed us that prior to the open records request that gave rise to your request for a ruling, the university received a subpoena in a suit styled In the Matter of the Marriage of Alina Aizenberg and Harry Aizenberg requesting virtually the same information. You stated that subsequently, the university received a copy of a Motion for Protection and Motion to Quash Subpoena in the matter. You therefore originally asked whether the information requested under the Public Information Act (the "Act") is excepted from public disclosure under rules 176.6 (d) and (e) of the Texas Rules of Civil Procedure, in conjunction with section 552.101 of the Government Code, which protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." By letter dated May 8, 2001, you then informed this office that the university received from the requestor a copy of a signed order in the above-referenced case dated April 27, 2001, in which the judge granted the Motion for Protection and Motion to Quash Subpoena. You state that "[i]t appears to us that by granting [the] motion, the court, in fact, has ordered protection of all records requested by the subpoena. However, the court also finds that certain of the subpoenaed records should be made available to Harry Aizenberg under the Public Information Act, but expressly refrains from ordering the University to produce any records." You then ask whether, in light of the court order, the university may release information pursuant to the public information request. We do not construe the court order, a copy of which both you and the requestor have submitted to this office, as prohibiting the university from providing to the requestor the information responsive to categories one, two and five of the request made under the Act, in the absence of an exception to disclosure. But see Gov't Code § 552.107(2) (providing that information is excepted from required public disclosure if a court by order has prohibited disclosure of the information). We will therefore address your arguments under section 552.101 for the submitted information. We will first address your original argument that the requested information is excepted from disclosure under rule 176.6 of the Texas Rules of Civil Procedure, in conjunction with section 552.101. Rule 176.6, subsections (d) and (e), provide as follows: (d) Objections. A person commanded to produce and permit inspection or copying of designated documents and things may serve on the party requesting issuance of the subpoena--before the time specified for compliance--written objections to producing any or all of the designated materials. A person need not comply with the part of a subpoena to which objection is made as provided in this paragraph unless ordered to do so by the court. The party requesting the subpoena may move for such an order at any time after an objection is made. (Italics added). (e) Protective Orders. A person commanded to appear at a deposition, hearing, or trial, or to produce and permit inspection and copying of designated documents and things, and any other person affected by the subpoena, may move for a protective order under Rule 192.6(b)--before the time specified for compliance--either in the court in which the action is pending or in a district court in the county where the subpoena was served. The person must serve the motion on all parties in accordance with Rule 21a. A person need not comply with the part of a subpoena from which protection is sought under this paragraph unless ordered to do so by the court. The party requesting the subpoena may seek such an order at any time after the motion for protection is filed. (Italics added). After reviewing the statutory language, we conclude that rule 176.6 subsections (d) and (e) of the Texas Rules of Civil Procedure do not make information confidential by law. See Open Records Decision Nos. 478 at 2 (1987) (stating that as a general rule, statutory confidentiality requires express language making certain information confidential or stating that information shall not be released to the public), 658 at 4 (1998) (stating that statutory confidentiality provision must be express, and a confidentiality requirement will not be implied from the statutory structure). See also Open Records Decision No. 416 (1984) (finding that even if evidentiary rule specified that certain information may not be publicly released during trial, it would have no effect on disclosability under Act). But see In re City of Georgetown, No. 00-0453, 2001 WL 123933, at *8 (Tex. Feb. 15, 2001) (finding that Texas Rules of Civil Procedure and Texas Rules of Evidence are 'other law' within the meaning of section 552.022 of the Government Code). Thus, the requested information is not confidential pursuant to section 552.101 in conjunction with rule 176.6 subsections (d) and (e) of the Texas Rules of Civil Procedure. We will next address whether the Federal Educational Rights and Privacy Act of 1974 ("FERPA") protects the requested information. FERPA provides that no federal funds will be made available under any applicable program to an educational agency or institution that releases personally identifiable information (other than directory information) contained in a student's education records to anyone but certain enumerated federal, state, and local officials and institutions, unless otherwise authorized by the student where the student is attending an institution of post-secondary education. See 20 U.S.C. § 1232g(d). "Education records" means those records that contain information directly related to a student and are maintained by an educational agency or institution or by a person acting for such agency or institution. Id. § 1232g(a)(4)(A). This office generally applies the same analysis under section 552.114 of the Government Code and FERPA. Open Records Decision No. 539 (1990). Section 552.114 excepts from disclosure student records at an educational institution funded completely or in part by state revenue. Section 552.026 provides as follows: This chapter does not require the release of information contained in education records of an educational agency or institution, except in conformity with the Family Educational Rights and Privacy Act of 1974, Sec. 513, Pub. L. No. 93-380, 20 U.S.C. Sec. 1232g. In Open Records Decision No. 634 (1995), this office concluded that (1) an educational agency or institution may withhold from public disclosure information that is protected by FERPA and excepted from required public disclosure by sections 552.026 and 552.101 without the necessity of requesting an attorney general decision as to those exceptions, and (2) an educational agency or institution that is state-funded may withhold from public disclosure information that is excepted from required public disclosure by section 552.114 as a "student record," insofar as the "student record" is protected by FERPA, without the necessity of requesting an attorney general decision as to that exception. Information must be withheld from required public disclosure under FERPA only to the extent "reasonable and necessary to avoid personally identifying a particular student." See Open Records Decision Nos. 332 (1982), 206 (1978). Additionally, FERPA provides that "directory information" may be released to the public if the institution or agency complies with section 1232g(a)(5)(B) of title 20 of the United States Code. "Directory information" includes the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student. 20 U.S.C. § 1232g(a)(5)(A). Section 1232g(a)(5)(B) provides as follows: [a]ny educational agency or institution making public directory information shall give public notice of the categories of information which it has designated as such information with respect to each student attending the institution or agency and shall allow a reasonable period of time after such notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without the [student's] prior consent. 20 U.S.C. § 1232g(a)(5)(B). This office has previously held that a class roster is directory information. See Open Records Decision Nos. 634 (1995), 244 (1980). Here, we believe the submitted information pertaining to students registered for a particular course during certain semesters, to those who are pursuing a particular major over a certain time period, and to the named individual's course schedule for certain semesters, is similar to a class roster. Accordingly, as it appears the university has designated this information as directory information,(1) the university is required to disclose the submitted information after complying with federal notice requirements for release of directory information. Id.; 34 C.F.R. § 99.37. 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, Michael A. Pearle
MAP/seg Ref: ID# 147760 Encl. Submitted documents cc: Mr. Oscar A. Vela, Jr.
Footnotes 1. The university, on its publicly available website at http://www.tamiu.edu/affairs/registrar/students_records.htm, provides in part the following with regard to student records: "Texas A & M International University may, without consent of the student, release information designated as Directory Information. Directory information is defined by the Family Educational Rights and Privacy Act as information contained in an education record which would not generally be considered harmful or an invasion of privacy if released. It includes, but is not limited to: name, address (local, permanent, e-mail), telephone number(s), date and place of birth, dates of attendance, major and minor fields of study, degree(s) received, most recent previous education institution attended, photograph, classification, class schedule, class rosters." The university further provides on its website that "[s]tudents who do not want information to be released, are responsible for notifying the Registrar in writing, or by completing the Request to Withhold Public Information form, during the first week of class to ensure that information is not released by the university. Students are responsible for requesting the release of their information once a request for withholding public information has been placed on record."
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |