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Office of the Attorney General - State of Texas John Cornyn |
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June 25, 2002 Ms. Fancy H. Jezek
OR2002-3454 Dear Ms. Jezek: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 164843. The Killeen Independent School District (the "district"), which you represent, received a request from the State Board for Educator Certification ("SBEC") for six categories of information related to three district employees and allegations of abuse of a named student. You claim that the requested information is excepted from disclosure under sections 552.101, 552.103, 552.107, and 552.114 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information. Initially, we must address a matter relating to a similar request the district received from another requestor. On March 11, 2002, the district received a request from Advocacy, Incorporated for all records of a deceased student and all documents relating to the incident in which the student died. You submitted a request for a decision regarding the information from this office, which was assigned identification number 164087. On March 24, you informed this office that you wished to withdraw your request for a decision regarding that request for information, because the district had released all of the information it initially sought to withhold. We notified you by letter dated June 10, 2002, that the request for a decision was considered closed, while also noting the requestor's contention that the district had not in fact released all of the responsive information, and stated that the requestor's complaint was forwarded to the Open Government Hotline staff for their consideration. The information submitted to this office by the district on April 18, 2002 as responsive to the instant request for information consists of information that was also responsive to the earlier request and apparently was not submitted to this office in response to Advocacy, Incorporated's request. Thus, with respect to that earlier request, we must note the following: section 552.301 prescribes procedures that a governmental body must follow in asking this office to decide whether requested information may be withheld from the public. Section 552.301(e) provides that a governmental body is required to submit to this office within fifteen business days of receiving an open records request (1) general written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. You did not submit all of the responsive information to this office in relation to the earlier request for information. Section 552.302 provides that a governmental body's failure to timely submit to this office the information required in section 552.301(e) results in the legal presumption that the information is public and must be released. Information that is presumed public must be released unless a governmental body demonstrates a compelling reason to withhold the information to overcome this presumption. See Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to Gov't Code § 552.302); Open Records Decision No. 319 (1982). Compelling reasons exist when the information is made confidential by law or affects the interest of a third party. Open Records Decision No. 630 at 3 (1994). You claim that the requested information is excepted under sections 552.103 and 552.107. Sections 552.103 and 552.107 are discretionary exceptions intended to protect only the interests of the governmental body. See Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 522 at 4 (1989) (discretionary exceptions in general), 473 (1987) (city's failure to meet 10-day deadline waived protections of sections 552.103 and 552.111). Therefore, sections 552.103 and 552.107 do not provide compelling reasons to overcome the presumption of openness, and we do not consider your claims under these exceptions. The district may only withhold the submitted information that is responsive to the earlier request to the extent release is prohibited or it is made confidential by law.(1) Next, we note that the requestor is a staff member of 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 his or 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 the federal Family Educational Rights and Privacy Act of 1974 ("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 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. As section 552.101 provides a compelling reason to overcome the presumption of openness, we will address your arguments under this section. You contend that the information in Exhibit B is confidential under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," which encompasses information protected by other statutes. Section 21.355 of the Education Code provides, "A document evaluating the performance of a teacher or administrator is confidential." This office 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 an administrator is someone who is required to hold and does hold a certificate required under chapter 21 of the Education Code and is administering at the time of his or her evaluation. Id. After reviewing the information at issue, we find that none of it constitutes a teacher evaluation for the purpose of section 21.355 of the Education Code. Therefore, the district may not withhold any of this information under section 552.101 of the Government Code. Further, you argue that the submitted information is confidential under section 552.114 and 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); 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). 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." Gov't Code § 552.114(a). 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). However, we disagree with your contention that the protection afforded to student records by FERPA expires only upon the death of a student who has reached age 18 or who attends an institution of post-secondary education. Relying on a statement from the director of the Family Policy and Regulations Office, this office determined that FERPA and section 552.114's predecessor statute do not prevent a governmental body from making the education records of deceased students available to members of the public. See Open Records Decision No. 524 (1989). This conclusion is consistent with the premise that the privacy rights of an individual lapse upon death. See Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex. App.-Texarkana 1979, writ ref'd n.r.e.); see also Justice v. Belo Broadcasting Corp., 472 F. Supp. 145, 146-47 (N.D. Tex. 1979) ("action for invasion of privacy can be maintained only by a living individual whose privacy is invaded") (quoting Restatement of Torts 2d). Thus, you may not withhold information identifying the deceased student under FERPA. We have marked the types of information that may reveal or tend to reveal information about other students that must be withheld pursuant to FERPA and section 552.114 of the Government Code. Further, section 552.117(1) of the Government Code excepts from public 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. Gov't Code § 552.117(1); see id. § 552.024. Whether information is protected under section 552.117(1) must be determined as of the time the information was requested. Open Records Decision No. 530 at 5 (1989). Thus, if the employees whose information is at issue elected under section 552.024, prior to the instant request for information, to keep these items of personal information confidential, you must withhold that information under section 552.117(1) of the Government Code. If such timely elections under section 552.024 were not made, then you may not withhold this information under section 552.117 of the Government Code, and it is subject to release. We have marked the information that is subject to section 552.117. In summary, you must withhold the information we have marked pursuant to FERPA and section 552.114 of the Government Code. The information we have marked pursuant to section 552.117 must be withheld if the employees whose information is at issue have made timely elections under section 552.024. The remaining submitted information must be released. 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, Kristen Bates
c: Ms. Katherine L. Moore
Footnotes 1. Although we discuss the effect of the district's failure to timely submit responsive information in relation to the earlier request, this ruling only addresses what information must be released to SBEC, and does not in any way address the issue of what information must be released to Advocacy, Incorporated. That matter may be handled separately in relation to Advocacy's complaint. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |