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Office of the Attorney General - State of Texas John Cornyn |
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February 15, 2002 Ms. Jennifer Lehmann
OR2002-0767 Dear Ms. Lehmann: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 158668. The San Antonio Independent School District (the "district"), which you represent, received a request for "any and all file material related to any and all hearings, minutes, transcripts of meetings or transfers pertaining to [a named student] related to the incident which occurred on or about April 2001 at Tafolla Middle School." You note that the cover letter accompanying the request for information indicates that the request for information is being made pursuant to a subpoena. You further indicate that because no subpoena was included in the request for information, you are treating this matter as an open records request. You claim that the information, submitted as exhibit "B," is excepted from disclosure under sections 552.026, 552.101, 552.103, 552.108, 552.111, 552.114, and 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. Initially, we note that the submitted records are made expressly public by section 552.022 of the Government Code. Section 552.022 provides, in pertinent part: (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108[.] Gov't Code § 552.022(a)(1). The submitted records comprise a completed investigation made by the district. Therefore, pursuant to section 552.022, the submitted records must be released to the requestor unless they are confidential under other law. Sections 552.103 and 552.111 of the Government Code are discretionary exceptions under the Public Information Act and do not constitute "other law" for purposes of section 552.022. See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469 (Tex. App.-Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision No. 473 (1987) (governmental body may waive section 552.111). You assert that the submitted records are confidential under section 552.101 of the Government Code. Section 552.101 is "other law" for purposes of section 552.022. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." You assert that the submitted records are confidential under section 552.101 in conjunction with section 261.201 of the Family Code. Section 261.201 provides in part as follows: (a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency: (1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and (2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. Fam. Code § 261.201(a). You state that the submitted information pertains to an investigation of suspected child abuse conducted by the district. We note that a school district is not an agency authorized to conduct a chapter 261 investigation. See Fam. Code §§ 261.301, .406. However, you inform this office that "the investigative documents attached as Exhibit 'B' were created during an investigation into allegations of child abuse by a teacher against a minor child and were shared with both Child Protective Services and the District Attorney's Office, pursuant to a Grand Jury summons, during their independent investigations." Because the information in Exhibit "B" was used in an investigation conducted under chapter 261 of the Family Code, we believe such information is made confidential by section 261.201. In the instant case, however, some of the submitted information consists of student education records that fall within the purview of sections 552.026 and 552.114 of the Government Code and the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g. We note that section 261.201 of the Family Code, a state statute, may be preempted by federal law to the extent it conflicts with that federal law. See, e.g., Equal Employment Opportunity Comm'n v. City of Orange, Texas, 905 F. Supp. 381, 382 (E.D. Tex. 1995); see also Open Records Decision No. 431 (1985). Thus, to the extent that some of the submitted records are subject to FERPA, we address whether any of these records must be released to the requestor under this federal provision. 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). 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). A student's handwritten statement is generally considered "identifying information." See Open Records Decision No. 224 (1979). 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. We note that FERPA grants the parents of a student a right of access to the educational records of that student. See 20 U.S.C. § 1232g(a)(1)(A). Subsection (b)(2) provides that a written consent from the student's parents must specify the "records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student's parents and the student if desired by the parents." 20 U.S.C. § 1232g(b)(2). Here, the requestor is an attorney representing the parents. In this instance, we conclude FERPA operates to allow parental access to the student's education records.(1) See Belanger v. Nashua, New Hampshire, Sch. Dist., 856 F. Supp. 40 (D.N.H. 1994) (district records relating to student's juvenile court proceedings were "education records" which parent was entitled to access irrespective of state confidentiality law). Thus, you must release this student's records to the requestor upon receipt of a proper written consent as required by section 1232g(b)(2). However, the student records also contain information regarding other students. As these students could be personally identified from the information presented, pursuant to FERPA, you must redact the names of these other students prior to disclosing the information to the requestor. We have marked the information that you must release to the requestor upon receipt of a proper written consent letter. The rest of the information must be withheld under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. Because sections 552.026, 552.101, and 552.114 of the Government Code and FERPA are dispositive, we do not address your additional 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); Tex. Dep't of Pub. 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, Yen-Ha Le
c: Ms. Anavell Gonzales
Footnotes 1. We additionally note that if the investigation has been referred to the Department of Protective and Regulatory Services (the "department"), a parent who is a requestor may be entitled to access to the department's records. Section 261.201(g) of the Family Code provides that the department, upon request and subject to its own rules: shall provide to the parent, managing conservator, or other legal representative of a child who is the subject of reported abuse or neglect information concerning the reported abuse or neglect that would otherwise be confidential under this section if the department has edited the information to protect the confidentiality of the identity of the person who made the report and any other person whose life or safety may be endangered by the disclosure. Fam. Code § 261.201(g). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |