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Office of the Attorney General - State of Texas John Cornyn |
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August 21, 2001 Mr. Jeffrey A. Davis
OR2001-3693 Dear Mr. Davis: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 151001. Spring Branch Independent School District (the "district"), which you represent, received a request for official and certified copies of all information held by the district pertaining to a former specified district employee. You state that you will release all information that is responsive to request items two and six to the extent that it exists. You claim that the submitted information is excepted from disclosure pursuant to sections 552.101, 552.102, 552.107, 552.108, and 552.117 of the Government Code and the Family Educational and Privacy Rights Act, ("FERPA"), 20 U.S.C. § 1232g. We have considered the exceptions you claim and have reviewed the submitted representative sample documents.(1) Initially, we note that the requestor is a staff investigator for the State Board of Educator Certification. Although a governmental body may treat a request for information from another governmental body as a request under the Public Information Act (the "Act"), the Act does not require that it do so. See Attorney General Opinion JM-119 at 2 (1983). The transfer of information within a governmental body or between governmental bodies is not necessarily a release to the public for purposes of the Act. See id. For example, a member of a governmental body, acting in her official capacity, is not a member of the public when that person requests information in the hands of that governmental body. Thus, an authorized official or employee may review records of the governmental body without implicating the Act's prohibition against selective disclosure. See Attorney General Opinion JM-119 at 2 (1983); see also Open Records Decision No. 468 at 4 (1987). However, we note that an interagency transfer of requested information is prohibited in situations where a confidentiality statute enumerates the specific entities to which release of confidential information is authorized and when the requesting governmental body is not among the statute's enumerated entities. See Open Records Decision Nos. 655 (1997), 516 (1989), 490 (1988); see also Attorney General Opinions DM-353 at 4 n. 6 (1995), JM-590 (1986). Among the records at issue are "education records" that are made confidential under FERPA. See 20 U.S.C. § 1232g(a)(4)(A). Such records may be transferred to an "educational agency or institution." See 20 U.S.C. § 1232g(b)(1). However, because the State Board for Educator Certification (hereinafter "SBEC") is not such an institution, the education records at issue may not be transferred to SBEC. See 20 U.S.C. § 1232g(a)(3). Accordingly, the district has the discretion to release the submitted information to SBEC, but only to the extent that the information does not include any information that is confidential under FERPA. However, should you decline to exercise that discretion, you must nonetheless adhere to the following decision regarding the applicability of your claimed exceptions to the submitted information. You claim that the submitted information in Exhibit E and some of the submitted information in Exhibit B is excepted from disclosure pursuant to section 552.108 of the Government Code. Section 552.108(a)(2) of the Government Code provides in pertinent part:
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Gov't Code § 552.108(a)(2). Generally, a governmental body claiming section 552.108(a)(2) of the Government Code as an exception to disclosure must demonstrate that the information relates to a criminal investigation that has concluded in a final result other than a conviction or deferred adjudication. See Gov't Code §§ 552.108(a), (b), .301(e)(1)(a); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). You state that the district's police department conducted three sexual harassment investigations into the former district employee's conduct that are now closed and which did not result in conviction or deferred adjudication. Based on your representations and our review of the submitted information in Exhibits B and E, we understand that these three sexual harassment investigations concluded in a final result other than conviction or deferred adjudication. Accordingly, all of the submitted information in Exhibit E, as well as the marked information in Exhibit B, is excepted from disclosure pursuant to section 552.108(a)(2) of the Government Code. However, section 552.108 does not except basic information about an alleged crime from disclosure. Gov't Code § 552.108(c). Generally, the identity of a complainant must be released as basic information. However, information tending to identify victims of sexual offenses is excepted from disclosure pursuant to section 552.101 in conjunction with the common law right to privacy.(2) See Open Records Decision Nos. 440 (1986), 393 (1983), 339 (1982). Accordingly, the district must withhold all identifying information of alleged sexual harassment victims contained within Exhibit E and the marked documents in Exhibit B that are excepted under section 552.108 from disclosure. However, the remaining basic information must be released. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976); see also Open Records Decision No. 127 (1976) (summarizing types of information considered to be basic information, including detailed description of offense). You claim that the remaining portions of Exhibit B are excepted from disclosure pursuant to section 552.101 in conjunction with the common law right to privacy. Information is protected by common law privacy when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court addressed the applicability of the common law right to privacy to files of an investigation of allegations of sexual harassment. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. See Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry stating that the public's interest was sufficiently served by the disclosure of such documents. See id. In concluding, the Ellen court held that "the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id. The remaining portions of Exhibit B are documents that are not maintained by the district's police department, but which contain references to allegations of sexual harassment by the former district employee. Although information relating to investigations of sexual harassment claims involving public employees may be highly intimate or embarrassing, the public generally has a legitimate interest in knowing the details of such an investigation. See Open Records Decision Nos. 470 (1987) (public employee's job performance does not generally constitute his private affairs), 455 (1987) (public employee's job performances or abilities generally not protected by privacy), 444 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employees), 423 at 2 (1984) (scope of public employee privacy is narrow); see also Ellen, 840 S.W.2d at 525. However, based on our review of the remaining information in Exhibit B, we conclude that one of the documents entitled "Follow-up Conference and Summary of Investigation" (hereinafter "summary document"), which we have marked, comprises an adequate summary of the sexual harassment investigation. See id. at 525-26. Because this document serves the public interest in the information at issue, the remaining information in Exhibit B must be withheld from disclosure pursuant to section 552.101 of the Government Code in conjunction with the common law right to privacy. With respect to the summary document in Exhibit B, we note that it contains information that is confidential under the Family Educational Rights and Privacy Act of 1974 ("FERPA"). 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's parent. See 20 U.S.C. § 1232g(b)(1). "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. See id. § 1232g(a)(4)(A). Information must be withheld from 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). Section 552.114 excepts from disclosure student records at an educational institution funded completely or in part by state revenue. This office generally applies the same analysis under section 552.114 and FERPA. See Open Records Decision No. 539 (1990). In Open Records Decision No. 634 (1995), this office concluded that (1) an educational agency or institution may withhold from disclosure information that is protected by FERPA and excepted from 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 disclosure information that is excepted from 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. The summary document in Exhibit B pertains to claims of sexual harassment made by students. Thus, it is an "education record" for purposes of FERPA. Consequently, we conclude that the district must withhold from disclosure the marked information in this document in Exhibit B pursuant to FERPA and section 552.114 of the Government Code. However, the district must release the remaining portions of this document to the requestor. You claim that the submitted information in Exhibits C1 through C5 is excepted from disclosure pursuant to section 552.102(a) of the Government Code. Section 552.102(a) excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Gov't Code § 552.102(a). In Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App.--Austin 1983, writ ref'd n.r.e.), the court ruled that the test to be applied to information claimed to be protected under section 552.102(a) is the same as the test formulated by the Texas Supreme Court in Industrial Foundation for information claimed to be protected under the doctrine of common law privacy as incorporated by section 552.101 of the Government Code. See Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Accordingly, we address your section 552.102(a) claim under section 552.101 of the Government Code in conjunction with the common law right to privacy. Information is protected by common law privacy when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. See id. Prior decisions of this office have found that personal financial information not relating to a financial transaction between an individual and a governmental body is protected by common law privacy. See Open Records Decision Nos. 600 (1992) (personal financial choices concerning insurance are generally confidential), 545 (1990) (common law privacy protects personal financial information). After reviewing the submitted information in Exhibits C1 through C5, we do not believe that any of it is confidential based on a common law right to privacy. Accordingly, you must release Exhibits C1 through C5 to the requestor in their entirety. You claim that the submitted information in Exhibits C6 through C8 is excepted from disclosure pursuant to section 552.102(b) of the Government Code. Section 552.102(b) states: a transcript from an institution of higher education maintained in the personnel file of a professional public school employee, except that this section does not exempt from disclosure the degree obtained or the curriculum on a transcript in the personnel file of the employee. Gov't Code § 552.102(b). After reviewing the submitted college transcripts in Exhibits C6 through C8, we conclude that you must withhold all portions of those transcripts from disclosure pursuant to section 552.102(b) of the Government Code, except for the information concerning the former employee's curriculum and degree obtained. You claim that the submitted information in Exhibit D is excepted from disclosure pursuant to section 552.107 of the Government Code. Section 552.107 protects information encompassed by the attorney-client privilege. In Open Records Decision No. 574 (1990), this office concluded that section 552.107 excepts from disclosure only "privileged information," that is, information that reflects either confidential communications from the client to the attorney or the attorney's legal advice or opinions; it does not apply to all client information held by a governmental body's attorney. See Open Records Decision No. 574 at 5 (1990). Purely factual communications from attorney to client, or between attorneys representing the client, are not protected. See id. at 3. In addition, factual recountings of events or the documentation of calls made, meetings attended, and memos sent are not protected. See id. at 5. After careful review of the submitted information in Exhibit D, we agree that most of it constitutes either a client confidence or an attorney's legal advice or opinion. Therefore, you may withhold from disclosure the marked information in Exhibit D pursuant to section 552.107 of the Government Code. You claim that the submitted information in Exhibit F is excepted from disclosure pursuant to section 552.117 of the Government Code. Section 552.117 excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024 of the Government Code. You state that the former district employee who is the subject of this request elected that the public not be allowed access to his home address, home telephone number, and his social security number prior to your receipt of the request for information. Thus, we agree that the district must withhold this type of information in Exhibit F from disclosure pursuant to section 552.117 of the Government Code. See Open Records Decision No. 530 at 5 (1989) (stating whether particular piece of information is protected by section 552.117 must be determined at time request for it is made). However, the remaining portions of Exhibit F must be released to the requestor. In summary, the district may withhold the marked portions of Exhibit B and all of Exhibit E from disclosure pursuant to section 552.108 of the Government Code. However, the district must release all basic information from the police records, except for the information that identifies the alleged victims of the sexual harassment claims, pursuant to section 552.108(c) of the Government Code. The district must withhold from disclosure the information in the summary document in Exhibit B which we have marked pursuant to section 552.114 of the Government Code and FERPA. The district must release the remaining portions of this document to the requestor. The district must withhold from disclosure the remaining information in Exhibit B pursuant to section 552.101 of the Government Code in conjunction with the common law right to privacy. The district must withhold from disclosure all portions of the submitted college transcripts in Exhibit C pursuant to section 552.102(b) of the Government Code, except for the information concerning the former employee's curriculum and degree obtained. The district may withhold from disclosure the marked information in Exhibit D pursuant to section 552.107 of the Government Code. The district must withhold from disclosure information in Exhibit F concerning the former district employee's home address, home telephone number, and social security number pursuant to section 552.117 of the Government Code. The district must release all other submitted information 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, Ronald J. Bounds
c: Mr. Scott Byram
Footnotes 1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore, does not authorize the withholding of any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. 2. Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. Section 552.101 encompasses the common law right to privacy. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |