 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
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May 25, 2006 Ms. Carla Cotropia
OR2006-05544 Dear Ms. Cotropia: 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#250083. The Dickinson Independent School District (the "district"), which you represent, received a request for all e-mails and correspondence pertaining to a former employee from September 1, 2002 through March 1, 2006, including communications involving eighteen named individuals. You state that the submitted information is excepted from disclosure under section 552.103 of the Government Code. We have reviewed the submitted arguments and information. Initially, we note that many of the submitted documents, which we have marked, are not responsive to the instant request for information, as they were created outside of the specified time period. This ruling does not address the public availability of any information that is not responsive to the request, and the district need not release that information in response to this request. Next, we note that some of 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, except as provided by Section 552.108; [and] . . . (3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[.] Gov't Code § 552.022(a)(1), (3). In this instance, the submitted information includes a completed report and a completed evaluation made of, for, or by the district. The district must release the completed report and the completed evaluation under section 552.022(a)(1) unless they are excepted from disclosure under section 552.108 or expressly confidential under other law. The submitted information also includes a contract relating to the expenditure of public or other funds by the district. The contract must be released under section 552.022(a)(3) unless it is expressly confidential under other law. You claim that the report, evaluation and the contract are excepted from disclosure under section 552.103 of the Government Code. We note, however, that section 552.103 is a discretionary exception to disclosure that protects the governmental body's interests and may be waived. 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 of the Government Code); Open Records Decision No. 542 at 4 (1990) (litigation exception may be waived). As such, section 552.103 is not other law that makes information confidential for the purposes of section 552.022. Therefore, the district may not withhold the report, evaluation, or contract under section 552.103. We note that the completed report is subject to section 552.101 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision," and encompasses information made confidential by other statutes.(1) The Family Educational Rights and Privacy Act of 1974 ("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). This office generally applies the same analysis under section 552.114 and FERPA. Open Records Decision No. 539 (1990). Section 552.114 excepts from disclosure student records at an educational institution funded completely or in part by state revenue. 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. In Open Records Decision No. 34 (1995), this office concluded that (1) n 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 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 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. 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). The report at issue concerns an incident involving the requestor and a student. Because the requestor knows the student's identity and the student's identity is inextricably linked with the incident, we find that the report at issue cannot be redacted to the extent reasonable and necessary to avoid identifying the student. Accordingly, the district must withhold the report at issue in its entirety pursuant to section 552.101 of the Government Code in conjunction with FERPA. Next, we note that section 21.355 of the Education Code may be applicable to the completed teacher evaluation. Section 21.355 provides that, "[any] 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 a teacher is someone who is required to hold and does hold a certificate or permit required under chapter21 of the Education Code and is teaching at the time of his or her evaluation. Id. at 4. Assuming that the individual who is the subject of this information held a teaching certificate under subchapter B of chapter 21 of the Education Code and was performing the functions of a teacher at the time of the evaluation, we conclude that the information we have marked is confidential in its entirety under section 21.355 of the Education Code and must be withheld from disclosure under section 552.101 of the Government Code. However, we note that section 21.352(c) specifically provides that "[e]ach teacher is entitled to receive a written copy of the evaluation on its completion." Therefore, to the extent the evaluation is one contemplated in section 21.352, the requestor has a right of access under section 21.352(c) and the evaluation at issue must be released. If the requestor does not have a right of access under section 21.352(c), this evaluation is excepted from disclosure pursuant to section 552.101 in conjunction with section 21.355 of the Education Code. With regard to the submitted information that is not subject to section 552.022, we address your claim under section 552.103. Section552.103 provides in part: (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 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. Gov't Code § 552.103(a), (c). The governmental body has the burden of providing relevant facts and documents sufficient to establish the applicability of section 552.103 to the information that it seeks to withhold. To meet this burden, the governmental body must demonstrate: (1) that litigation was pending or reasonably anticipated on the date of its receipt of the request for information and (2) that the information at issue is related to that litigation. See University of Tex. 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.); see also Open Records Decision No. 551 at 4 (1990). Both elements of the test must be met in order for information to be excepted from disclosure under section 552.103. Id. You argue that the information at issue is related to pending litigation. You inform this office that summary judgment was granted in favor of the district and the requestor has perfected his appeal to the Fifth Circuit Court of Appeals. Based on your representations, the supporting documentation that you have submitted, and our review of the information at issue, we conclude that you have met both prongs of the section 552.103 test. Therefore, we conclude that section 552.103 is generally applicable to the remaining responsive information. We note, however, once information has been obtained by all parties to the litigation through discovery or otherwise, no section 552.103(a) interest exists with respect to that information. See Open Records Decision Nos. 349 (1982), 320 (1982). In this instance, we note that the opposing party has seen some of the information at issue. Thus, the information that has either been obtained from or provided to the opposing party in the pending litigation is not excepted from disclosure under section 552.103(a), and it must be disclosed. Further, the applicability of section 552.103(a) ends once the litigation has been concluded. See Attorney General Opinion MW-575 (1982); see also Open Records Decision No. 350 (1982). In summary, the marked evaluation and contract must be released pursuant to section 552.022 of the Government Code. The marked evaluation must be withheld under section 552.101 in conjunction with section 21.355 of the Education Code unless the requestor has a right of access under section 21.352(c) of the Education Code. The marked report must be withheld under section 552.101 of the Government Code in conjunction with FERPA. With the exception of the information that the opposing party has seen, the district may withhold the remaining information under section 552.103 of the Government 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, 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 10 calendar days of the date of this ruling. Sincerely, Tamara L. Harswick
c: Mr. Carter Dribrell
Footnotes 1. The Office of the Attorney General will raise a mandatory exception like section 552.101 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 |