 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
March 26, 2007 Ms. Lydia L. Perry OR2007-03313 Dear Ms. Perry: 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# 274310. The Lewisville Independent School District (the "district"), which you represent, received a request for "superintendent - school board updates" from October 30, 2006 to the present. You claim that some of the requested information is excepted from disclosure under sections 552.105, 552.111, and 552.114 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information. We first note that the submitted information includes education records. The United States Department of Education Family Policy Compliance Office (the "DOE") recently informed this office that the Family Educational Rights and Privacy Act ("FERPA"), section 1232g of title 20 of the United States Code, does not permit state and local educational authorities to disclose to this office, without parental consent, unredacted, personally identifiable information contained in education records for the purpose of our review in the open records ruling process under the Act. (1) Consequently, state and local educational authorities that receive a request for education records from a member of the public under the Act must not submit education records to this office in unredacted form, that is, in a form in which "personally identifiable information" is disclosed. See 34 C.F.R. § 99.3 (defining "personally identifiable information"). You have submitted, among other things, unredacted education records for our review. Because our office is prohibited from reviewing these education records to determine the applicability of FERPA, we will not address FERPA with respect to these records. See 20 U.S.C. § 1232g(a)(1)(A); 34 C.F.R. § 99.3. Such determinations under FERPA must be made by the educational authority in possession of the education records. (2) However, we will consider your exceptions to disclosure of the submitted information under the Act. Section 552.105 of the Government Code excepts from disclosure information relating to: (1) the location of real or personal property for a public purpose prior to public announcement of the project; or (2) appraisals or purchase price of real or personal property for a public purpose prior to the formal award of contracts for the property. Gov't Code § 552.105. Section 552.105 is designed to protect a governmental body's planning and negotiating position with respect to particular transactions. See Open Records Decision No. 564 at 2 (1990). This exception protects information relating to the location, appraisals, and purchase price of property only until the transaction is either completed or aborted. See Open Records Decision Nos. 357 at 3 (1982), 310 at 2 (1982). A governmental body may withhold information "which, if released, would impair or tend to impair [its] 'planning and negotiating position in regard to particular transactions.'" Open Records Decision No. 357 at 3 (quoting Open Records Decision No. 222 (1979)). The question of whether specific information, if publicly released, would impair a governmental body's planning and negotiation position in regard to particular transactions is a question of fact. Accordingly, this office will accept a governmental body's good faith determination in this regard, unless the contrary is clearly shown as a matter of law. See Open Records Decision No. 564 (1990). You state that the information you have marked relates to the location of real property to be acquired for a public purpose. You also state that there has been no public announcement regarding the district's eventual plans for the property. We understand you to assert that disclosure of the information in question could affect the district's potential future plans for the identified property. Based on your representations and our review of the information in question, we conclude that the district may withhold the marked information under section 552.105 of the Government Code. You contend that the submitted information which you have highlighted pursuant to section 552.111 of the Government Code is excepted from disclosure. Section 552.111 excepts from disclosure "an interagency or intraagency memorandum or letter that would not be available by law to a party in litigation with the agency." Gov't Code § 552.111. In Open Records Decision No. 615 (1993), this office reexamined the predecessor to the section 552.111 exception in light of the decision in Tex. Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408 (Tex. App.--Austin 1992, no writ), and held that section 552.111 excepts only those internal communications consisting of advice, recommendations, opinions, and other material reflecting the deliberative or policymaking processes of the governmental body. Open Records Decision No. 615 at 5-6. An agency's policymaking functions, however, do not encompass internal administrative or personnel matters; disclosure of information relating to such matters will not inhibit free discussion among agency personnel as to policy issues. Id. Additionally, section 552.111 does not generally except from disclosure purely factual information that is severable from the opinion portions of internal memoranda. See Arlington Indep. Sch. Dist. v. Tex. Atty. Gen., 37 S.W.3d 152, 160 (Tex. App.--Austin 2001, no writ); Open Records Decision No. 615 at 4-5. You state that the information you seek to withhold under section 552.111 relates to the superintendent's opinions, recommendations, and advice on a variety of school district policy matters. Upon review, we find that the district has established the applicability of section 552.111 to some of the information at issue. However, we find that portions of the information you seek to withhold are purely factual or relate to routine internal administrative or personnel matters. Accordingly, the district may withhold only the information we have marked under section 552.111 of the Government Code. The remaining information at issue may not be withheld under section 552.111 of the Government Code. In summary, the district may withhold the information that we have marked under sections 552.105 and 552.111 of the Government Code. The remaining information must be released to the requestor. This ruling does not address the applicability of FERPA to the submitted information. Should the district determine that all or portions of the submitted information consists of "education records" subject to FERPA, the district must dispose of that information in accordance with FERPA, rather than the Act. 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, Cindy Nettles Assistant Attorney General Open Records Division CN/eb Ref: ID# 274310 Enc. Submitted documents c: Mr Jay Parsons Dallas Morning News Metro News Department 131 West Main Street Lewisville, Texas 75057 (w/o enclosures)
1. A copy of this letter may be found on the attorney general's website, http://www.
oag.state.tx.us/opinopen/og_resources.shtml.
In the future, if the district does obtain parental consent to submit unredacted education records, and
the district seeks a ruling from this office on the proper redaction of those education records in compliance with
FERPA, we will rule accordingly. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |