 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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July 1, 2003 Mr. Paul Hunn
OR2003-4512 Dear Mr. Hunn: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 183611. The Utopia Independent School District (the "district"), which you represent, received a request for information pertaining to allegations made against the requestor's client. The requestor subsequently clarified that he was not seeking information that is protected from disclosure by the attorney-client privilege. See Gov't Code § 552.222 (providing that if request for information is unclear, governmental body may ask requestor to clarify request); see also Open Records Decision No. 31 (1974) (stating that when governmental bodies are presented with broad requests for information rather than for specific records, governmental body may advise requestor of types of information available so that request may be properly narrowed). You state that the district will provide the requestor with some responsive information to the extent that it exists.(1) You also state that portions of the requested information constitute personally identifiable student information contained in student education records which the district is withholding from the requestor pursuant to Open Records Decision No. 634 (1995).(2) You claim that the remaining requested information, or portions thereof, is excepted from disclosure pursuant to sections 552.101 and 552.135 of the Government Code. We have considered the exceptions you claim and have reviewed the submitted information. Initially, we must address the procedural requirements of section 552.301 of the Government Code. Section 552.301 provides that a governmental body must ask the attorney general for a decision as to whether requested information must be disclosed not later than the tenth business day after the date of receiving the written request for information. See Gov't Code § 552.301(b). You state that the district received the written request for information on April 9, 2003. Therefore, the district had until April 23, 2003 to request a decision from our office regarding the requested information. However, the district did not request a decision concerning the requested information until April 25, 2003, more than ten business days after the date that the district received this request. Accordingly, we conclude that the district failed to comply with the procedural requirements of section 552.301 of the Government Code in requesting this decision from us. See Gov't Code § 552.301(b). Because the district failed to comply with the procedural requirements of section 552.301 in requesting this decision, the information at issue is now presumed public. See Gov't Code § 552.302; see also Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ); City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex. App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The district must demonstrate a compelling interest in order to overcome the presumption that the information at issue is now public. See id. Normally, a compelling interest is demonstrated when some other source of law makes the requested information confidential or when third party interests are at stake. See Open Records Decision No. 150 at 2 (1977). Since the district claims that the remaining requested information, or portions thereof, is excepted from disclosure under sections 552.101 and 552.135 of the Government Code, we will address the district's claims. Next, we note that portions of the submitted information are subject to the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g. 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). Section 552.026 of the Government Code incorporates FERPA into the Act. See Open Records Decision No. 634 at 6-8 (1995). Section 552.026 provides: 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" 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. See id. § 1232g(a)(4)(A). Information must be withheld from 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). 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). Based upon our review of the submitted information, we find that portions of this information constitute personally identifiable information contained in a student's education records. Accordingly, we conclude that the district must withhold the information that we have marked pursuant to FERPA. See Open Records Decision Nos. 539 (1990), 332 (1982), 206 (1978). You claim that the remaining submitted information is excepted from disclosure pursuant to section 552.135 of the Government Code. Section 552.135 provides: (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 this exception to disclosure must clearly identify 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 that the informers in this instance "came forward to report [to the district] behavior that could possibly constitute sexual abuse and harassment in violation of Title IX." Based on our review of your representations and the remaining submitted information, we find that the district has adequately demonstrated that the conduct reported to the district concerns a possible violation of criminal, civil, or regulatory law under section 552.135. Accordingly, we conclude that the district must withhold the information that we have marked pursuant to section 552.135. However, because no portion of the rest of the remaining submitted information "would substantially reveal the identity of an informer," we also conclude that the district may not withhold any other portion of the remaining submitted information pursuant to section 552.135 of the Government Code. You also claim that portions of the remaining submitted information are excepted from disclosure pursuant to section 552.101 of the Government Code in conjunction with the common-law right to privacy.(3) Information is protected from disclosure by the common-law right to privacy if it is information that (1) contains highly intimate or embarrassing facts the release of which would be highly objectionable to a reasonable person, and (2) is not of legitimate concern to the public. See 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. See id. at 683. You indicate that portions of the remaining submitted information should be withheld from disclosure in accordance with Morales v. Ellen, 840 S.W.2d 519 (Tex. App. - El Paso 1992, writ denied). We note, however, that Ellen addressed the applicability of the doctrine of common-law privacy to information concerning investigations of sexual harassment allegations. Based on our review of the remaining submitted information, we find that Ellen is inapplicable in this instance. Accordingly, we conclude that the district may not withhold any portion of the remaining submitted information pursuant to section 552.101 on the basis of Ellen.(4) In summary, the district must withhold the information that we have marked pursuant to FERPA. The district must also withhold the information that we have marked pursuant to section 552.135 of the Government Code. The district must release the remaining submitted 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 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. 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, Ronald J. Bounds
c: Mr. Jefferson K. Brim, III
Footnotes 1. We note that it is implicit in several provisions of the Public Information Act (the "Act") that the Act applies only to information already in existence. See Gov't Code §§ 552.002, .021, .227, .351. The Act does not require a governmental body to prepare new information in response to a request. See Attorney General Opinion H-90 (1973); see also Open Records Decision Nos. 572 at 1 (1990), 555 at 1-2 (1990), 452 at 2-3 (1986), 416 at 5 (1984), 342 at 3 (1982), 87 (1975); Economic Opportunities Dev. Corp. of San Antonio v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App. -San Antonio 1978, writ dism'd). A governmental body must only make a good faith effort to relate a request to information which it holds. See Open Records Decision No. 561 at 8 (1990). 2. We note that in Open Records Decision No.634 (1995), this office concluded that (1)an educational agency or institution may withhold information that is protected by the Family Educational Rights and Privacy Act ("FERPA") and excepted from 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 information that is excepted from 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. Since the district has determined that portions of the requested information constitute personally identifiable student information contained in student education records, the district must comply with FERPA guidelines in withholding that information from the requestor. 3. Section 552.101 of the Government Code excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. See Gov't Code § 552.101. Section 552.101 encompasses information that is protected from disclosure by the common-law right to privacy. 4. Because we base our ruling on the above-noted provisions of law, we need not address the applicability of your sexual assault privacy claim, since we have addressed all identifying information of the student victim under FERPA. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |