 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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October 10, 2003 Ms. Fancy H. Jezek
OR2003-7222 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# 189242. The Killeen Independent School District (the "district"), which you represent, received a request from the State Board for Educator Certification (the "SBEC") for information relating to an employee of the district and an incident involving the employee, including (1) reports, notes, statements, or memoranda that reflect a chronology of the conduct reported or the district's investigation of the incident; (2) the employee's application for employment and any documents submitted in support of the application; (3) any information that evidences administrative reprimands or other disciplinary measures; (4) the employee's teacher service record; (5) any other document that may be relevant to the SBEC's investigation of the employee; and (6) a witness/victim list that includes the name, mailing address, and telephone numbers of the parents of the victim and contact information for any witnesses to the incident. You state that no "witness/victim list" exists. We note that chapter 552 of the Government Code does not require the district to release information that did not exist when it received this request or to create responsive information.(1) You have submitted responsive information that you claim is excepted from disclosure under sections 552.026, 552.101, 552.114, and 552.117 of the Government Code. We have considered the exceptions you claim and have reviewed the information you submitted. We assume that the district has released any other information that is responsive to this request, to the extent that such information existed when the district received the request. If not, then the district must release any such information at this time. See Gov't Code §§ 552.301, .302; Open Records Decision No. 664 (2000). We first note that the submitted information is subject to section 552.022 of the Government Code. Section 552.022 provides that 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[.] Gov't Code § 552.022(a)(1). In this instance, the submitted information consists of a completed investigation made of, for, or by a governmental body. Therefore, the district must release the submitted information unless it is expressly confidential under other law. You contend that all of the submitted information is confidential under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. Section 552.101 excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This exception encompasses information that another statute makes confidential. Section 21.355 of the Education Code provides that "[a] document evaluating the performance of a teacher or administrator is confidential." Educ. Code § 21.355. This office has interpreted section 21.355 to apply to any document that evaluates, as that term is commonly understood, the performance of a teacher or an administrator. See Open Records Decision No. 643 (1996). In that decision, we determined that the word "teacher," for purposes of section 21.355, is a person who is required to and does in fact hold a teaching certificate under subchapter B of chapter 21 of the Education Code or a school district teaching permit under section 21.055 and who is engaged in the process of teaching, as that term is commonly defined, at the time of the evaluation. See Open Records Decision No. 643 at 4. We also concluded that the word "administrator" in section 21.355 means a person who is required to and does in fact hold an administrator's certificate under subchapter B of chapter 21 of the Education Code and is performing the functions of an administrator, as that term is commonly defined, at the time of the evaluation. Id. You inform us that the submitted information relates to an investigation of alleged misconduct on the part of a certified teacher employed by the district. We understand you to contend that all of the submitted information constitutes an evaluation of the teacher for purposes of section 21.355 of the Education Code. We conclude, however, that section 21.355 is not applicable in this instance. Therefore, the district may not withhold any of the submitted information under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. Next, we address your arguments under sections 552.026 and 552.114 of the Government Code and the federal Family Educational Rights and Privacy Act of 1974 ("FERPA"). Section 552.026 incorporates FERPA into chapter 552 of the Government Code. See Open Records Decision No. 634 at 6-8 (1995). Section 552.026 provides that [t]his 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. 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). Under FERPA, "education records" 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). Section 552.114(a) of the Government Code excepts from required public disclosure "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).(2) Generally, FERPA requires that information be withheld from the public only to the extent "reasonable and necessary to avoid personally identifying a particular student." See 34 C.F.R. § 99.3 ("personally identifiable information" under FERPA includes, among other things, "[o]ther information that would make the student's identity easily traceable"); Open Records Decision Nos. 332 at 3 (1982), 206 at 2 (1978). In this instance, most of the submitted documents contain the names of students of the district and a student's parent. Some of the documents consist of the handwritten statements of students. See Open Records Decision No. 224 (1979) (release of document in student's handwriting would make student's identity easily traceable). You contend that much of this information must be withheld under FERPA in order to protect these students' identities. Having considered your arguments and carefully reviewed the information at issue, we have marked the information that is confidential under FERPA. We next note that the requestor identifies himself as an investigator for the professional discipline unit of the SBEC. Although a governmental body may treat a request by another governmental body such as the SBEC as a request for information under chapter 552 of the Government Code, a governmental body that receives such a request is not required to do so. See Attorney General Opinion JM-119 at 2 (1983). A transfer of information between governmental bodies is not necessarily a release to the public for purposes of chapter 552. See id. For example, an official or employee of a governmental body who, in an official capacity, requests information held by another governmental body does not act as a member of the public in doing so. Thus, an official or employee of one governmental body may review records of another governmental body without implicating the prohibition of selective disclosure under chapter 552 of the Government Code. See Attorney General Opinion JM-119 at 2 (1983); see also Open Records Decision No. 468 at 4 (1987). An interagency transfer of requested information is prohibited, however, if a confidentiality statute enumerates the specific entities to which confidential information may be disclosed, and the enumerated entities do not include the requesting governmental body. See Open Records Decision Nos. 655 at 8-9 (1997), 516 at 4-5 (1989), 490 at 2 (1988); see also Attorney General Opinions DM-353 at 4 n. 6 (1995), JM-590 (1986). In this instance, FERPA is the applicable confidentiality statute. FERPA authorizes the transfer of information to enumerated persons, agencies, and organizations for certain specified purposes. See 20 U.S.C. § 1232g(b)(1); see also 34 C.F.R. § 99.31. The SBEC is not one of the persons, agencies, or organizations to which the district may transfer the submitted information that is confidential under FERPA. Therefore, the marked information that is confidential under FERPA must not be released to the requestor. Lastly, we address your claim under section 552.117 of the Government Code. Section 552.117(a)(1) excepts from public 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 item of information is protected by section 552.117(a)(1) must be determined at the time that the request for the information is received by the governmental body. See Open Records Decision No. 530 at 5 (1989). Therefore, the district may only withhold information under section 552.117(a)(1) 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 this request for information. The district may not withhold information under section 552.117(a)(1) on behalf of a current or former official or employee who did not make a timely election of confidentiality under section 552.024. You inform us that the employee of the district to whom the submitted information pertains elected to prohibit disclosure of his home address. Assuming that the employee did so prior to the district's receipt of this request for information, we agree that the district must withhold the employee's home address under section 552.117(a)(1). In summary, the district must withhold the marked information that is confidential under FERPA. The district also must withhold the employee's home address under section 552.117(a)(1) of the Government Code. The rest of the 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 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, James W. Morris, III
c: Mr. John S. Lopez
Footnotes 1. See Economic Opportunities Dev. Corp. v. Bustamante, 562 S.W.2d 266 (Tex. Civ. App.--San Antonio 1978, writ dism'd); Open Records Decision Nos. 605 at 2 (1992), 452 at 3 (1986), 362 at 2 (1983). 2. 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). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |