 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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February 16, 2006 Ms. Carol Longoria
OR2006-01549 Dear Ms. Longoria: You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 242524. The University of Texas System (the "system") received two requests for the following information: (1) system policy, statute, or other information "indicating [whether the system] and/or Academic Affairs . . . review or deal with academic matters such as grade appeal[s] and discrimination complaint[s] against individual universities within the organization[;]" (2) "records regarding any [system] communication with any [University of Texas at Arlington ("UTA")] official regarding [the requestor's] grade and discrimination complaint against UTA[;]"; (3) "system policy justifying reference of [the requestor's] appeal . . . by the Office of Academic Affairs to the Office of General Counsel or professional legal services[;]" (4) "any communication" between system officials and a named individual "and/or [the] Office of General Counsel regarding [the requestor's] grade appeal and discrimination complaint[;]" (5) "any communication from [two named individuals from the system] with [three named individuals] from UTA regarding [the requestor's] grade appeal and discrimination complaint[;]" and (6) information regarding the system [ever helping any of its 15 institutions in any manner to resolve grade appeal and discrimination complaint[s] filed by any former student[.]"(1) You inform us that the system has released the information responsive to items 1 and 3 of the requests. You also state that the system is withholding some of the information responsive to item 6 pursuant to the Family Educational Rights and Privacy Act of 1974 ("FERPA"), section 1232g of title 20 of the United States Code.(2) See Open Records Decision No. 634 (1995) (concluding that educational agency or institution may withhold information protected by FERPA and sections 552.026 and 552.114 of the Government Code without necessity of requesting an attorney general decision as to that exception); see also Open Records Decision No. 673 at 7-8 (2001) (listing elements of second type of previous determination under section 552.301(a) of the Government Code). You have submitted information to this office that you claim is excepted from disclosure under sections 552.103 and 552.107 of the Government Code.(3) We have considered the exceptions you claim and reviewed the submitted information. Initially, we address the requestor's assertion that he is entitled under section 552.023 of the Government Code to the information sought in items 2 and 4 of the requests. Section 552.023 provides that a person or a person's authorized representative has a special right of access to information that is excepted from public disclosure under laws intended to protect that person's privacy interest. Gov't Code § 552.023. However, the system claims that this information is protected under sections 552.103 and 552.107 of the Government Code, neither of which is intended to protect the privacy of any individual. See id. §§ 552.103 (section 552.103 intended to protect information related to litigation in which governmental body is party), .107 (section 552.107 intended to protect information encompassed by the attorney-client privilege); see also id. § 552.023(b) (governmental body may assert provisions of Act or other law that are not intended to protect person's privacy interests to withhold information to which requestor may otherwise have a special right of access). Thus, section 552.023 is inapplicable in determining the availability of the information for which the system claims sections 552.103 and 552.107. We will therefore consider the system's arguments under these exceptions. First, however, we note that the information you have submitted under tabs 8, 9, 11, and 12 pertain to the requestor as a student at UTA. FERPA governs the availability of student records held by educational agencies or institutions that receive federal funds under programs administered by the federal government. Under FERPA, a student and the student's parents have an affirmative right of access to the student's own education records, although this right does not extend to information in the student's records that identifies other students. See 20 U.S.C. § 1232g(a)(1)(A); 34 C.F.R. § 99.3; see also 34 C.F.R. § 99.12(a) ("If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student."). "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). An "educational agency or institution" is "any public or private agency or institution" that receives federal funds under an applicable program. Id. § 1232g(a)(3). You state that the system is "neither an academic nor medical institution; therefore [the system has] no students in attendance and maintain[s] no student records[.]" However, you explain that "the System functions as the administrative offices for the fifteen (15) University of Texas campuses in the state." Moreover, we note that section 65.02 of the Education Code provides that "The University of Texas System is composed of [eleven enumerated educational institutions]." Educ. Code § 65.02(a) (emphasis added). Furthermore, despite the assertion that the system is not an academic institution, you inform us that the system is withholding other responsive information pursuant to FERPA and the previous determination issued by this office in Open Records Decision No. 634. We therefore find that the system is an educational agency or institution for purposes of FERPA. See id. § 1232g(a)(4)(A). Moreover, this information pertains to the requestor as a student of UTA. As such, we find that this information consists of his "education records" for purposes of FERPA. See Open Records Decision No. 462 at 15 (1987). Therefore, FERPA requires the system to give this requestor the right to inspect this information, unless one of the exceptions you raise applies. See Open Records Decision No. 229 (1979). You claim that this information is excepted from disclosure based on section 552.103 of the Government Code. However, section 552.103 is a state statute that is preempted by federal law to the extent it conflicts with that federal law. See, e.g., Equal Employment Opportunity Comm'n v. City of Orange, 905 F. Supp 381, 382 (E.D. Tex. 1995); see also Open Records Decision No. 431 (1985) (information subject to right of access under FERPA may not be withheld pursuant to statutory predecessor to section 552.103). Thus, we conclude that none of the information you have submitted under tabs 8, 9, 11, and 12 may be withheld from the requestor under section 552.103 of the Government Code. You also raise section 552.103 for the information you have submitted under tab 5, which consists of various court documents pertaining to other students' or former students' academic appeals and discrimination complaints. The requestor does not have a right of access under FERPA to such information. However, some of this information indicates, by file stamp or judge's signature, that it was filed with a court. Further, while we are unable to ascertain for certain whether the remainder of this information was also filed with a court, it appears likely that it was so filed. In this regard, section 552.022(a)(17) of the Government Code provides as follows: (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: . . . (17) information that is also contained in the public court record[.] Gov't Code § 552.022(a)(17). Section 552.022(a)(17) makes information filed with a court expressly public. Therefore, the system may withhold the court-filed documents only to the extent they are made confidential under "other law." Sections 552.103 is a discretionary exception to disclosure that protects a governmental body's interests and is therefore not "other law" for purposes of section 552.022(a)(17). See Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d 469, 475-76 (Tex. App--Dallas 1999, no pet.) (governmental body may waive section 552.103); Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 663 (1999) (governmental body may waive section 552.103). As such, to the extent the documents submitted under tab 5 were filed with a court, they may not be withheld under section 552.103. However, to the extent any of this information was not filed with a court, we will address your claim under this exception. Section 552.103 provides in relevant part as follows: (a) Information is excepted from [required public disclosure] 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 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. Gov't Code § 552.103(a), (c). A governmental body has the burden of providing relevant facts and documents to show that the section 552.103 exception is applicable in a particular situation. The test for meeting this burden is a showing that (1) litigation was pending or reasonably anticipated on the date that the governmental body received the request for information, and (2) the information at issue is related to that litigation. Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479, 481 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210, 212 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Open Records Decision No. 551 at 4 (1990). A governmental body must meet both prongs of this test for information to be excepted under section 552.103. To establish that 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). Whether litigation is reasonably anticipated must be determined on a case-by-case basis. See id. Concrete evidence to support a claim that litigation is reasonably anticipated may include, for example, 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. See Open Records Decision No. 555 (1990); see also 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. See Open Records Decision No. 331 (1982). Further, the fact that a potential opposing party has hired an attorney who makes a request for information does not establish that litigation is reasonably anticipated. See Open Records Decision No. 361 (1983). You argue that the system reasonably anticipates litigation because "[a]s early as March 2005, this Requestor has sent correspondences to UTA requesting 'punitive damages'" and has made several specific threats to file a civil suit, in one instance stating "that he is appealing to the System as a last resort, 'prior to any civil litigation to redress this matter.'" You have also highlighted various threats of litigation made by the requestor that appear in other portions of the submitted information. Moreover, you contend that this information is related to the anticipated litigation because "information on other alleged discrimination claims would certainly benefit an individual seeking to file his own complaint." Based on your arguments and our review of the information at issue, we find that the system reasonably anticipated litigation on the date it received the requests for information and that this information is related to that anticipated litigation. As such, to the extent it is not subject to section 552.022(a)(17), the system may withhold the information you have submitted under tab 5 pursuant to section 552.103 of the Government Code. However, the information that has been filed with a court is subject to section 552.022(a)(17) and may not be withheld under section 552.103. We note that FERPA is considered "other law" for purposes of section 552.022. Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," and encompasses information protected by other statutes. Gov't Code § 552.101. The court-filed documents appear to contain information about students other than the requestor. In this regard, section 552.026 of the Government Code 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]. As noted above, 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). Information in education records 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). We note that FERPA does not apply to information acquired after someone is no longer a student. See 34 C.F.R. § 99.3 (2005). Thus, with respect to the records that are subject to section 552.022(a)(17), to the extent they contain information that identifies individuals who were students at the time the records were acquired, the system must withhold such identifying information pursuant to FERPA. Lastly, we address your claim that section 552.107 of the Government Code applies to the information submitted under tabs 9, 11, and 12. As stated above, this information consists of the requestor's "education records" for purposes of FERPA. However, the Family Policy Compliance Office of the United States Department of Education has informed this office that a student's right of access under FERPA to information about the student does not prevail over the right of an educational agency or institution to assert the attorney-client privilege or work product privilege. As such, we will address your claim that this information is excepted from disclosure based on the attorney-client privilege under section 552.107 of the Government Code. First, however, you inform us that "Tab 9 contains certain attorney/client documents that, due to a clerical error, were inadvertently copied and released by [UTA] in response to a previous inquiry from this requestor." You argue that this release does not act to waive the claim that this information is excepted from disclosure pursuant to section 552.107 of the Government Code. Prior decisions from our office have concluded that involuntary disclosure of information on a limited basis through no official action and against the wishes and policy of the governmental body does not waive exceptions under the Act. See Open Records Decision Nos. 387 at 3 (1983), 376 at 2 (1983). Cf. Tex. R. Evid. 511 (waiver of attorney-client privilege by voluntary disclosure); Open Records Decision No. 676 at 10-11 (where document has been voluntarily disclosed to opposing party, attorney-client privilege has generally been waived). Based on the information you have provided, we agree that the system has not waived its claim under the attorney-client privilege and section 552.107. We will therefore consider your claim under this exception for the information submitted in tab 9, as well the remaining information for which you claim section 552.107. When asserting the attorney-client privilege under section 552.107, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege in order to withhold the information at issue. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate that the information constitutes or documents a communication. Id. at 7. Second, the communication must have been made "for the purpose of facilitating the rendition of professional legal services" to the client governmental body. Tex. R. Evid. 503(b)(1). The privilege does not apply when an attorney or representative is involved in some capacity other than that of providing or facilitating professional legal services to the client governmental body. In re Tex. Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.--Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in capacity other than that of attorney). Governmental attorneys often act in capacities other than that of professional legal counsel, such as administrators, investigators, or managers. Thus, the mere fact that a communication involves an attorney for the government does not demonstrate this element. Third, the privilege applies only to communications between or among clients, client representatives, lawyers, and lawyer representatives. Tex. R. Evid. 503(b)(1)(A), (B), (C), (D), (E). Thus, a governmental body must inform this office of the identities and capacities of the individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege applies only to a confidential communication, id. 503(b)(1), meaning it was "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." Id. 503(a)(5). Whether a communication meets this definition depends on the intent of the parties involved at the time the information was communicated. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.--Waco 1997, no writ). Moreover, because the client may elect to waive the privilege at any time, a governmental body must explain that the confidentiality of a communication has been maintained. Section 552.107(1) generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege unless otherwise waived by the governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein). In this instance, you inform us that this information consists of confidential communications between system and UTA administrators, lawyers, and support staff made for the purpose of facilitating the rendition of professional legal services. You have also identified for this office the individuals involved in these communications. Having considered your arguments and reviewed the information at issue, we agree that this information reflects privileged attorney-client communications. As such, the system may withhold the information submitted under tabs 9, 11, and 12 pursuant to section 552.107(1) of the Government Code. In summary, to the extent the information submitted under tab 5 has been filed with a court, it is subject to section 552.022(a)(17) of the Government Code and must be released; however, in releasing these records, the system must withhold the identifying information of students pursuant to FERPA. To the extent the information submitted under tab 5 is not subject to section 552.022(a)(17), it may be withheld under section 552.103 of the Government Code. The system may also withhold the information submitted under tabs 9, 11, and 12 in accordance with section 552.107 of the Government Code. The information submitted under tab 8 must be released 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 ten 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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 Office of the Attorney General 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. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within ten calendar days of the date of this ruling. Sincerely, Robert B. Rapfogel
c: Mr. Kojo Wih-Nkansah
Footnotes 1. We are addressing in this ruling the two requests that you have labeled "Request #2" and "Request #3," received by the system on November 29, 2005 and December 16, 2005, respectively. We note that, while the system and the requestor are treating them as two separate requests, "Request #3" is essentially a clarification of the information sought in "Request #2." See Gov't Code § 552.222(b) (governmental body may communicate with requestor for purpose of clarifying or narrowing request for information). 2. 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). 3. Although you also raise sections 552.111, 552.117, 552.136, and 552.137 of the Government Code in the system's original brief to this office, you have provided no arguments in support of withholding information under these sections. We therefore assume the system is no longer claiming these exceptions. See Gov't Code §§ 552.301, .302; see also Open Records Decision No. 473 (1987) (governmental body may waive section 552.111). You also raise section 552.101 of the Government Code in conjunction with section 552.107 on the basis of the attorney-client privilege. However, section 552.101 does not encompass the attorney-client privilege or other exceptions found in the Act. See Open Records Decision No. 676 at 1-3 (2002). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB:WWW.OAG.STATE.TX.US |