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Office of the Attorney General - State of Texas John Cornyn |
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March 4, 2002 Mr. John A. Kazen
OR2002-1064 Dear Mr. Kazen: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 159247. The Laredo Independent School District (the "district,") which you represent, received a request for "all campus and/or central office records including but not limited to, employment records, complaints, reprimands, grievances and their outcomes, if any. . ." pertaining to a certain former district employee for the period of his employment with the district. You state that some information has been provided to the requestor, however, you claim that the remaining requested information is excepted from disclosure under sections 552.101 and 552.102 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We note at the outset that the request for information submitted to the district is not from a member of the public but from another governmental entity. We ruled in Open Records Decision No. 661 (1999) that whether a governmental entity may release information to another governmental entity is not a question under the Public Information Act (the "Act") as the Act is concerned with the required release of information to the public. Gov't Code §§ 552.001, .002, .021; see Attorney General Opinions, H-683 (1975), H-242 (1974), M-713 (1970); Open Records Decision No. 655 (1997). For many years, this office has recognized that it is the public policy of this state that governmental bodies should cooperate with each other in the interest of the efficient and economical administration of statutory duties. See, e. g., Attorney General Opinion H-836 (1976); Open Records Decision No. 655 (1997). But see Attorney General Opinions DM-353 at 4 n. 6 (1995). However, an interagency transfer is prohibited where the confidentiality statute enumerates specific entities to which release of confidential information is authorized and where the receiving agency is not among the statute's enumerated entities. See also JM-590 (1986); and Open Records Decision No. 655 (1997). Thus, the district does not have discretion to release the information subject to the Medical Practice Act, chapter 159 of the Occupations Code, chapter 611 of the Health & Safety Code, chapter 201 of the Occupations Code, or the federal Family Educational Rights and Privacy Act of 1974, section 1232g of title 20 of the United States Code. Therefore, you must adhere to the following decision regarding the applicability of these provisions to the requested information. As for the information subject to the remaining applicable provisions, the district has the discretion to release the information to this requestor. Should you decline to exercise that discretion, you must nonetheless adhere to the following decision regarding the applicability of your claimed exceptions to the request. We note that section 552.022 of the Government Code 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: . . . . (3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[.] Gov't Code § 552.022(a)(3). Therefore, the district must release any requested information that falls within subsection (3) of section 552.022(a), unless that information is expressly confidential under other law. Exhibit N-13 contains a copy of the former employee's contract with the district which is subject to section 552.022(a)(3). You state that you have already released a copy of the contract to the requestor. However, the contract contains a social security number, which may be subject to the provisions of section 552.117, as we will explain. 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. Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Therefore, the school district may only withhold information under section 552.117 on behalf of current or former officials or employees who made a request for confidentiality under section 552.024 prior to the date on which the request for this information was made. For those employees who timely elected to keep their personal information confidential, the school district must withhold the employees' home addresses and telephone numbers, social security numbers, and any information that reveals whether these employees have family members. The school district may not withhold this information under section 552.117 for those employees who did not make a timely election to keep the information confidential. We note that social security numbers may be withheld in some circumstances under section 552.101 of the Government Code. A social security number or "related record" may be excepted from disclosure under section 552.101 in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. § 405(c)(2)(C)(viii)(I). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. We have no basis for concluding that any of the social security numbers in the file are confidential under section 405(c)(2)(C)(viii)(I), and therefore excepted from public disclosure under section 552.101 on the basis of that federal provision. We caution, however, that section 552.352 of the Public Information Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained by the district pursuant to any provision of law, enacted on or after October 1, 1990. You assert that some of the requested information is confidential under the Medical Practice Act (the "MPA"). Some of the records at issue are medical records, access to which is governed by the MPA, chapter 159 of the Occupations Code. Section 159.002 of the MPA provides: (b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter. (c) A person who receives information from a confidential communication or record as described by this chapter, other than a person listed in Section 159.004 who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. The medical records must be released upon the patient's signed, written consent, provided that the consent specifies (1) the information to be covered by the release, (2) reasons or purposes for the release, and (3) the person to whom the information is to be released. Occ. Code §§ 159.004, .005. Section 159.002(c) also requires that any subsequent release of medical records be consistent with the purposes for which the governmental body obtained the records. Open Records Decision No. 565 at 7 (1990). Medical records may be released only as provided under the MPA. Open Records Decision No. 598 (1991). We have marked the documents to show which are medical records subject to the MPA. The submitted documents also contain mental health records made confidential by section 552.101 in conjunction with Chapter 611 of the Health and Safety Code. Chapter 611 provides for the confidentiality of records created or maintained by a mental health professional. Section 611.002(a) reads as follows: Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential. Health & Safety Code § 611.002. Section 611.001 defines a "professional" as (1) a person authorized to practice medicine, (2) a person licensed or certified by the state to diagnose, evaluate or treat mental or emotional conditions or disorders, or (3) a person the patient reasonably believes is authorized, licensed, or certified. Sections 611.004 and 611.0045 provide for access to mental health records only by certain individuals. See Open Records Decision No. 565 (1990). The district may only release the marked document in accordance with the access provisions of sections 611.004 and 611.0045. The submitted documents also include records relating to chiropractors. Chapter 201 of the Occupations Code governs the practice of chiropractic. Section 201.042 of the Occupations Code provides in part: (a) Communications between a chiropractor and a patient relating to or in connection with any professional services provided by a chiropractor to the patient are confidential and privileged and may not be disclosed except as provided by this subchapter. (b) Records of the identity, diagnosis, evaluation, or treatment of a patient by a chiropractor that are created or maintained by a chiropractor are confidential and privileged and may not be disclosed except as provided by this subchapter. (c) A person who receives information from the confidential communications or records, excluding a person listed in Section 201.404(a) who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. Occ. Code § 201.402(a)-(c). Chapter 201 includes exceptions to confidentiality and consent provisions that correspond to those contained in the MPA. See id. §§ 201.403, .404, .405. We have marked the records relating to chiropractors that are subject to chapter 201 of the Occupations Code. The district may release these records only if chapter 201 of the Occupations Code permits the district to do so. Section 552.101 excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 also encompasses the doctrine of common law privacy. Common law privacy protects information if (1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). The type of information considered intimate and embarrassing by the Texas Supreme Court in Industrial Foundation included information relating to sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimate children, psychiatric treatment of mental disorders, attempted suicide, and injuries to sexual organs. 540 S.W.2d at 683. This office has found that the following types of information are excepted from required public disclosure under common law privacy: some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987) (prescription drugs, illnesses, operations, and physical handicaps). We have marked information that must be withheld pursuant to section 552.101 in conjunction with common law privacy. You also claim that some of the submitted information is excepted under section 552.101 in conjunction with the Education Code. Section 21.355 of the Education Code provides that "[a] document evaluating the performance of a teacher or administrator is confidential." This office has interpreted this section to apply to any document that evaluates, as that term is commonly understood, the performance of a teacher or administrator. Open Records Decision No. 643 (1996). In that opinion, this office also concluded that a "teacher" is someone who is required to hold and does hold a certificate or permit required under chapter 21 of the Education Code and is performing the functions of a teacher at the time of his or her evaluation. Id. at 4. Based on the reasoning set out in Open Records Decision No. 643, we conclude that some of the submitted documents are confidential under section 21.355 of the Education Code. Therefore, pursuant to section 552.101 of the Government Code, the district must withhold the information which we have marked as covered by section 21.355 of the Education Code. You also claim that the former district employee's college transcript in Exhibit G 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). Based on our review of your arguments and this transcript in Exhibit G, we conclude that the district must withhold all portions of that transcript from disclosure pursuant to section 552.102(b) of the Government Code, except for information concerning the former district employee's curriculum and degree obtained. The former employee's curriculum and degree that he obtained must be released to the requestor. We note that the submitted documents contain student identifying information. The federal Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g, 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); see also 34 C.F.R. § 99.3 (defining personally identifiable information). Section 552.026 of the Government Code incorporates FERPA into chapter 552 of the Government Code. See Open Records Decision No. 634 at 6-8 (1995). 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. Gov't Code § 552.026. "Education records" under FERPA are those records that contain information directly related to a student and that are maintained by an educational agency or institution or by a person acting for such agency or institution. See 20 U.S.C. § 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 at 3 (1982), 206 at 2 (1978). This includes information that directly identifies a student, as well as information that, if released, would allow the student's identity to be easily traced. See Open Records Decision No. 224 (1979) (finding student's handwritten comments making identity of student easily traceable through handwriting, style of expression, or particular incidents related in comments protected under FERPA). Section 552.114(a) of the Government Code requires that the district withhold "information in a student record at an educational institution funded wholly or partly by state revenue." This office generally has treated "student record" information under section 552.114(a) as the equivalent of "education record" information that is protected by FERPA. See Open Records Decision No. 634 at 5 (1995). 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 of the Government Code 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 of the Government Code 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. See Open Records Decision No. 634 at 6-8 (1995). We have marked the student identifying information that appears in the submitted documents. Unless the district has authority under FERPA to release this type of information, the district must withhold all such information under the federal law. In summary, the district may release medical records, which we have marked, only as provided under the MPA. The district may release other documents which we have marked in accordance with the access provisions of sections 611.004 and 611.0045 of the Health and Safety Code. The district may release the records which we have marked in accordance with chapter 201 of the Occupations Code. The district must not release the marked private information pursuant to section 552.101 in conjunction with common law privacy. Pursuant to the interagency transfer doctrine, the district has the discretion to release the information subject to Government Code section 552.101 in conjunction with the common law right to privacy, Government Code sections 552.102 and 552.117, as well as Education Code section 21.355. Should the district choose not to exercise its discretion under the interagency transfer doctrine, the following exceptions apply. Based on section 552.101 of the Government Code, the district must not release the documents we have marked as confidential teacher evaluations under section 21.355 of the Education Code. The district must withhold the college transcript from disclosure pursuant to section 552.102(b) of the Government Code, except for information concerning the former district employee's curriculum and degree obtained. Student identifying information, which we have marked, may be released only in accordance with FERPA. The district must withhold the home addresses and social security numbers, which we have marked, if the former employee requested that this information be kept confidential under section 552.024. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained by the district pursuant to any provision of law, enacted on or after October 1, 1990. Subject to the conditions discussed above, the district must release the remaining 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 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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, Joyce K. Lowe
c: Ms. Sylvia Rendon
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |