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Office of the Attorney General - State of Texas John Cornyn |
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January 18, 2002 Mr. Mike Atkins
OR2002-0296 Dear Mr. Atkins: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 157541. The Ector County Independent School District (the "school district"), which you represent, received a request for information regarding an assault against a named student. You claim that the requested information is excepted from disclosure under sections 552.026, 552.101, 552.114, and 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We begin by addressing your contention that the submitted information is confidential under the Family Educational Rights and Privacy Act of 1974 ("FERPA"). The Family Educational Rights and Privacy Act of 1974 ("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. Id. § 1232g(a)(4)(A). This office generally applies the same analysis under section 552.114 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 or one or both of the student's parents." Open Records Decision Nos. 332 (1982), 206 (1978). The submitted information relates to an alleged sexual harassment and assault committed by one student against two other students. We therefore agree that most of the submitted information consists of education records. Furthermore, the requestor appears to know the identity of at least one of the students involved in the alleged incidents. Therefore, in this instance, the school district must withhold the education records in their entirety in order to satisfy the requirements of FERPA. We note, however, that one of the submitted documents is not an education record and therefore is not confidential under FERPA. Records maintained by a law enforcement unit of an educational agency or institution that were created by that law enforcement unit for purposes of law enforcement are excluded from the definition of "education records" under FERPA. See 20 U.S.C. § 1232g(a)(4)(ii). It appears that one of the submitted records was "created by [the school district's] law enforcement unit for purposes of law enforcement." Therefore, we conclude that FERPA does not apply to this record and student identifying information contained therein is thus not subject to FERPA's confidentiality requirements and may not be withheld on that basis. See also Open Records Decision No. 673 at 7-8 (2001) (decisions such as Open Records Decision No. 634 may be relied upon as a previous determination only so long as five criteria are met, including the criterion that all of the elements of law, fact, and circumstances are met to support the decision's conclusion with respect to the records at issue); Open Records Decision No. 634 at 3 n.3 (1995). Nevertheless, we note that the law enforcement record is confidential under common-law privacy. Section 552.101 of the Government Code excepts from disclosure information that is "considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Included within this exception is information protected under the common-law right to privacy. The doctrine of common-law privacy protects information if: (1) it is highly intimate or embarrassing such that its release would be highly objectionable to a reasonable person, and (2) the public has no legitimate interest in it. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). We have previously concluded that a sexual assault victim has a common-law privacy interest that prevents disclosure of information that would identify her. Open Records Decision No. 339 (1982); see Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied) (identity of witnesses to and victims of sexual harassment was highly intimate or embarrassing information and public did not have a legitimate interest in such information). Here, the submitted information relates to an alleged sexual assault, and the requestor appears to know the identity of one of the alleged sexual assault victims. We therefore believe that withholding only identifying information from the requestor would not preserve the victim's common-law right to privacy. Consequently, the school district must withhold the law enforcement record in its entirety pursuant to section 552.101 of the Government Code and common-law privacy. In summary, the school district must withhold the law enforcement record contained in the submitted information under section 552.101 of the Government Code in conjunction with common-law privacy. The school district must withhold the remainder of the submitted information under FERPA and section 552.114 of the Government Code. Based on these findings, we need not reach the remainder of your arguments. 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 Texas Building and Procurement 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, Nathan E. Bowden
NEB/sdk Ref: ID# 157541 Enc. Submitted documents c: Ms. Laura Dennis
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |