 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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January 24, 2003 Mr. Therold I. Farmer
OR2003-0514 Dear Mr. Farmer: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 178023. The Marfa Independent School District (the "District"), which you represent, received a request for ten categories of information. You assert the submitted information is excepted from disclosure under sections 552.101, 552.102, 552.103, 552.108, 552.114, and 552.135 of the Government Code. We have reviewed the information you submitted and considered the exceptions you claim. First, we address the District's assertion that section 552.103 of the Government Code excepts "all records requested." Section 552.103 of the Government Code states in pertinent part: (a) Information is excepted from the requirements of Section 552.021 if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party. . . . . (c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information. To secure the protection of section 552.103(a), the District must demonstrate the requested information "relates" to pending or reasonably anticipated litigation. Open Records Decision No. 588 (1991). The District has the burden of providing relevant facts and documents to show the applicability of an exception in a particular situation. The test for establishing the applicability of section 552.103(a) requires a two-prong showing that (1) litigation is pending or reasonably anticipated, and (2) the information at issue is related to that litigation. University of Texas Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). To establish litigation is reasonably anticipated, a governmental body must provide this office "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Open Records Decision No. 452 at 4 (1986). Concrete evidence to support a claim that litigation is reasonably anticipated may include the governmental body's receipt of a letter containing a specific threat to sue the governmental body from an attorney for a potential opposing party. Open Records Decision No. 555 (1990); see Open Records Decision No. 518 at 5 (1989) (litigation must be "realistically contemplated"). On the other hand, this office has determined that if an individual publicly threatens to bring suit against a governmental body, but does not actually take objective steps toward filing suit, litigation is not reasonably anticipated. Open Records Decision No. 638 at 3 (1996). Further, the mere fact that an individual hires an attorney and the attorney makes a request for information does not establish that litigation is reasonably anticipated. Open Records Decision No. 361 (1983). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. Open Records Decision No. 452 at 4 (1986). With respect to the first prong, you base your assertion of the litigation exception in part on the fact that an attorney retained by the parents of the students at issue submitted the request for information. However, merely hiring an attorney does not provide "concrete evidence" of pending or reasonably anticipated litigation. Further, though the submitted information contains references to verbal threats of litigation, such documentation lacks sufficiency to satisfy prong one as required by section 552.103(a) of the Government Code. Additionally, you contend Document Group 4 represents evidence of a pending contested case. While we agree a legitimate dispute exists, you have provided no evidence indicating either the District is a party to litigation or the District represents the administrator in this particular case. See Gov't Code § 552.103(a). Therefore, we conclude the District has not established the applicability of section 552.103 of the Government Code to either the submitted information as a whole or Document Group 4 individually. Second, with respect to the information in Document Group 1, you claim the following: 1) the limited applicability of the Public Information Act (the "Act") under Section 552.026; and 2) exception to disclosure under sections 552.101 and 552.114 of the Government Code. 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 [FERPA]." Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." 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). 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. 634 at 5 (1995). Initially, we note in your brief, you cite Open Records Decision No. 634 (1995), in which this office concluded that (1) an educational agency or institution must 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 must 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. In this instance, the District has requested an attorney general decision regarding the requested information and it has submitted documents to this office in redacted form for our review. Subsequent to Open Records Decision No. 634, the Department of Education issued a letter advising educational agencies and institutions that they may submit personally identifiable information subject to the Family Educational Rights and Privacy Act of 1974 (the "FERPA") for the purposes of seeking an attorney general ruling as to the disclosure of information under FERPA or state law. See Letter from LeRoy S. Rooker, Director, Family Policy Compliance Office, United States Department of Education to David Anderson, Chief Counsel, Texas Education Agency (April 29, 1998) (on file with Open Records Division, Office of the Attorney General). Therefore, in the future, if the District seeks an attorney general opinion under the Act regarding information subject to FERPA, it should submit such information without redactions. You inform us the parents of the students at issue have not provided the District with written authorization to release the education records concerning their children to their attorney, the requestor of the submitted information, as required by FERPA. See 20 U.S.C. § 1232g(b)(1). Nevertheless, if and when the District receives parental authorization, the District must comply with the release of information governed by FERPA. All of the material in Document Group 1 contains information that directly relates to the students whom the requesting attorney represents. Therefore, upon receiving written authorization for the release of such information from the parents, the District must release Document Group 1, with any redactions as required by this ruling. You explain, and our review of the submitted information confirms, the material in Document Group 1 contains identifying information of other students. Applying the above reasoning, the District may not release information concerning these other students without the parental consent of each student mentioned in the material. Nevertheless, 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). Further, information that does not directly identify a student, but would make a student's identity easily traceable, must also be withheld. 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). Therefore, we disagree with your assertion that because the District lacks the parental consent of each student identified within Document Group 1, the District must withhold all of these records. Rather, we conclude the following: 1) the District, if and when it receives authorization from the parents of the students at issue, must release the information in Document Group 1; and 2) it must redact identifying information of other students in Document Group 1, unless the District receives parental consent for the release of a student's identifying information to the requestor, under section 552.101 in conjunction with FERPA. Third, we address your arguments for excepting information in Document Groups 3 and 4 from public disclosure under section 552.101 of the Government Code. Section 552.101 excepts "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." You claim section 552.101 in conjunction with section 21.355 of the Education Code applies to except certain information in Document Groups 3 and 4. Section 21.355 of the Education Code provides, "Any 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). After reviewing the documents at issue, we find the documents in Document Groups 3 and 4 do not fall within the scope of an evaluation. Therefore, the District may not withhold information in Document Groups 3 and 4 under section 21.355 of the Education Code. Also, you provide several arguments for withholding the polygraph-related information in Document Group 4. Section 552.101 of the Government Code encompasses section 1703.306 of the Occupations Code, which provides as follows: (a) A polygraph examiner, trainee, or employee of a polygraph examiner, or a person for whom a polygraph examination is conducted or an employee of the person, may not disclose information acquired from a polygraph examination to another person other than: (1) the examinee or any other person specifically designated in writing by the examinee; (2) the person that requested the examination; (3) a member, or the member's agent, of a governmental agency that licenses a polygraph examiner or supervises or controls a polygraph examiner's activities; (4) another polygraph examiner in private consultation; or (5) any other person required by due process of law. Occ. Code § 1703.306. Document Group 4 contains information obtained from a polygraph examination. Further, after reviewing the submitted documentation, we find no indication that any of the exceptions to confidentiality as provided by section 1703.306 apply in the present case. See Open Records Decision 565 (1990) (construing predecessor statute). Accordingly, we have marked the information in Document Group 4 we deem confidential pursuant to section 1703.306 of the Occupations Code that the District must withhold from the requestor under section 552.101 of the Government Code. Fourth, we address your assertion that Document Groups 3 and 4 warrant protection from disclosure under section 552.102 of the Government Code, which 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). Further, you express concern that any potentially erroneous conclusions could place individuals "in a false light." 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 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 Act. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). For information to be protected from public disclosure by the common law right of privacy under section 552.101, the information must meet the criteria set out in Industrial Foundation. In Industrial Foundation, the Texas Supreme Court stated that information is excepted from disclosure if (1) the information contains highly intimate or embarrassing facts the release of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public. Id. at 685. 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. Based on our review of Document Groups 3 and 4, we believe the documents do not contain such highly intimate or embarrassing facts as to warrant protection under common-law privacy. Furthermore, the public has a legitimate interest in the statements. See Open Records Decision Nos. 444 at 5-6 (1986) (public has interest in public employee's qualifications and performance and the circumstances of his resignation or termination), 405 at 2-3 (1983) (public has interest in manner in which public employee performs his job), 329 at 2 (1982) (information relating to complaints against public employees and discipline resulting therefrom is not protected under former section 552.101 or 552.102), 208 at 2 (1978) (information relating to complaint against public employee and disposition of the complaint is not protected under either the constitutional or common-law right of privacy). Additionally, you argue releasing information in Document Group 4 could place the involved employees in a false light. However, Texas courts do not recognize false light privacy as an actionable tort. See Cain v. Hearst Corp., 878 S.W.2d 577, 579 (Tex. 1994). Further, a governmental body may not withhold from disclosure information pertaining to a public employee merely because its release might place a person in a false light. See Open Records Decision No. 579 (1990). Thus, section 552.102 of the Government Code does not provide a basis for withholding the information in Document Groups 3 and 4. Fifth, with respect to Document Group 2, you assert section 552.108 of the Government Code as a basis for withholding information from the requestor. Section 552.108 states that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from required public disclosure "if release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code § 552.108(a)(1). Though the District retains a copy of a document also maintained by the Marfa Police Department (the "Department"), you contend the District's possession of a copy of the document transpired as a result of an "intergovernmental sharing of records." Citing Chapter 37, Subchapter C of the Education Code, you explain the District relies on the Department for its law enforcement rather than commissioning its own peace officers to perform this service. Further, you state the Department declines to release Document Group 2, as the requested information pertains to a pending case. This office has uniformly concluded that government agencies subject to the Act may transfer information without destroying the confidential nature of the information. Open Records Decision Nos. 655 (1997), 567 (1990), 561 (1990), 516 (1989); Attorney General Opinion JM-590 (1986). The principle that information may be transferred without destroying its confidential character, however, does not apply where a statute makes the information confidential and allows the transfer of the information to only certain enumerated entities. ORD 655. See also Attorney General Opinion JM-590 (1986); Open Records Decision No. 650 (1996). These decisions are grounded in the well settled policy of the state that state agencies should cooperate with each other in the interest of the efficient and economical administration of their statutory duties. ORD 655. See also Open Records Decision No. 516 (1989).(1) Further, the decisions recognize that releasing information to a state agency is not considered a release to the public for purposes of section 552.007 of the Government Code, which prohibits the selective disclosure of information, and section 552.352 of the Government Code, which provides criminal penalties for the release of information considered to be confidential under the Act. ORD 655. Under the transfer doctrine, the Department had the discretion whether to transfer the information to the District. In this instance, the Department chose to transfer a copy of this document to the District. The District asserts that the Department has declined to release a copy of the record. Further, the District states that the Department has an ongoing investigation. Thus, we agree the information at issue is excepted under section 552.108(a)(1) of the Government Code. However, because the Department has transferred a copy of the document to the District, and it is now maintained by the District, it is also an education record governed by FERPA. FERPA, in pertinent part, reads as follows: (4) (A) For the purposes of this section, the term "education records" means, except as may be provided otherwise in subparagraph (B), those records, files, documents, and other materials which - (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution. (B) The term education record does not include - . . . . (ii) records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement. 20 U.S.C. § 1232g(a)(4). The District maintains Document Group 2, which contains information directly related to the students the requestor/attorney represents. See 20 U.S.C. § 1232g(a)(4)(A). Also, the document is not a record maintained by a law enforcement unit of the District. See 20 U.S.C. § 1232g(a)(4)(B)(ii). Therefore, we find Document Group 2 meets the FERPA definition of an education record. Thus, although the District may withhold the information under section 552.108(a)(1) of the Government Code, if and when the District receives the necessary parental approval for the release of information as required by FERPA, the District must release Document Group 2 to the requestor because when a conflict exists between FERPA and the Act, the federal statute prevails. U.S. Const. art. VI, cl. 2 (laws of the United States "shall be the supreme Law of the Land" notwithstanding any state laws to the contrary). Also, regarding Document Group 2, you inform us the District notified the Department of its purported third party status and its right to submit a brief to this office should it desire to prevent disclosure of any proprietary information. Section 552.110 of the Government Code protects the property interests of private persons by excepting from disclosure two types of information: (1) trade secrets obtained from a person and privileged or confidential by statute or judicial decision and (2) commercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained. The governmental body, or interested third party, raising this exception must provide a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from disclosure. Gov't Code § 552.110(b); see also National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974). Because the Department did not submit arguments in response to the section 552.305 notice, we have no basis to conclude that the Department's information is excepted from disclosure. See Open Records Decision Nos. 639 at 4 (1996) (to prevent disclosure of commercial or financial information, party must show by specific factual or evidentiary material, not conclusory or generalized allegations, that it actually faces competition and that substantial competitive injury would likely result from disclosure), 552 at 5 (1990) (party must establish prima facie case that information is trade secret), 542 at 3 (1990). Moreover, after reviewing the document at issue, we find Document Group 2 clearly contains no proprietary information protected under section 552.110 of the Government Code. Sixth, you contend the information in Document Groups 2, 3, and 4 is excepted from public disclosure under section 552.131 of the Government Code. Former section 552.131 pertaining to information held by a school district was renumbered by the Seventy-seventh legislature to section 552.135 of the Government Code. Act of May 22, 2001, 77th Leg., R.S., H.B. 2812, § 21.001(54). Section 552.135 provides as follows: (a) "Informer" means a student or former student or an employee or former employee of a school district who has furnished a report of another person's or persons' possible violation of criminal, civil, or regulatory law to the school district or the proper regulatory enforcement authority. (b) An informer's name or information that would substantially reveal the identity of an informer is excepted from [required public disclosure]. (c) Subsection (b) does not apply: (1) if the informer is a student or former student, and the student or former student, or the legal guardian, or spouse of the student or former student consents to disclosure of the student's or former student's name; or (2) if the informer is an employee or former employee who consents to disclosure of the employee's or former employee's name; or (3) if the informer planned, initiated, or participated in the possible violation. (d) Information excepted under Subsection (b) may be made available to a law enforcement agency or prosecutor for official purposes of the agency or prosecutor upon proper request made in compliance with applicable law and procedure. (e) This section does not infringe on or impair the confidentiality of information considered to be confidential by law, whether it be constitutional, statutory, or by judicial decision, including information excepted from the requirements of Section 552.021. Gov't Code § 552.135. Because the legislature limited the protection of section 552.135 to the identity of a person who reports a possible violation of "law," a school district that seeks to withhold information under that exception must clearly identify to this office the specific civil, criminal, or regulatory law that is alleged to have been violated. See Gov't Code § 552.301(e)(1)(A). You state Document Groups 3 and 4 contain the names of individuals who reported to the District possible violations of law including the following: sections 22.003 and 21.404 of the Education Code; sections 22.01, 22.07, 36.06, and 37.10 of the Penal Code; and Title IX of the General Education Amendments of 1972, 20 U.S.C. § 1681. Based on your argument and our review of the submitted information, and in agreement with the District, we conclude the District must withhold the identifying information - name, phone number, and address - of each of the two informers from Document Groups 3 and 4, which we have marked, under section 552.135 of the Government Code. As for Document Group 2, we determined its contents to be an education record as defined by FERPA. As we noted, if a conflict exists between FERPA and the Act, the federal statute prevails. U.S. Const. art. VI, cl. 2. Therefore, because Document Group 2 contains a FERPA record, section 552.135, a state law provision, provides no protection from disclosure. Thus, the District may not redact the identifying information of the reporting individual named in Document Group 2 under section 552.135 of the Government Code. Finally, we note Document Group 4 contains information subject to section 552.117 of the Government Code.(2) Section 552.117 excepts from disclosure the home address and telephone number, social security number, and family member information of a current or former official or employee of a governmental body who requests 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 District may only withhold information under section 552.117 on behalf of a current or former official or employee who made a request for confidentiality under section 552.024 prior to the date on which the District received the present request for information. For any employee who timely elected to keep his or her personal information confidential, the District must withhold the employee's home address and telephone number, social security number, and any information that reveals whether the employee has family members. The District may not withhold this information under section 552.117 for an employee who did not make a timely election to keep the information confidential. Document Group 4 contains a page which lists the contact information for several witnesses. For those witnesses who are District employees, section 552.117 applies to their information. Thus, we caution the District to ensure it complies with the requirements of section 552.117 of the Government Code by redacting such information from Document Group 4, if necessary. In summary, if and when the District receives parental consent as required by FERPA, the District must release Document Groups 1 and 2, with any necessary redactions, to the requestor under section 552.101 of the Government Code in conjunction with FERPA. If the District does not receive the proper parental consent, it may withhold Document Group 2 under section 552.108 of the Government Code. Further, the District must release Document Groups 3 and 4 with specified redactions permitted by section 552.135 of the Government Code and required by section 552.117 of the Government Code. Finally, the District must not release the polygraph information in Document Group 4 we have marked under section 552.101 of the Government Code in conjunction with section 1703.306 of the Occupations Code. 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, Christen Sorrell
c: Mr. Roy Ferguson
Chief Cataño
Footnotes 1. County and municipal governments are recognized as agencies of the state. See Attorney General Opinion H-836 (1976) at 4. 2. The Office of the Attorney General will raise a mandatory exception like section 552.117 on behalf of a governmental body, but ordinarily will not raise other exceptions. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |