March 27, 2007

Mr. John A. Kazen
Kazen, Meurer & Perez L.L.P.
For the Laredo Independent School District
P. O. Box 6737
Laredo, Texas 78040-6237

OR2007-03323

Dear Mr. Kazen:

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# 274295.

The Laredo Independent School District (the "district"), which you represent, received a request for all information pertaining to a district employee and the allegations against him for inappropriate behavior. You state that some information has been released, but claim that the remaining requested information is excepted from disclosure under sections 552.101 and 552.102 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note that the district has failed to comply with section 552.301 of the Government Code in requesting this decision. Section 552.301 describes the procedural obligations placed on a governmental body that receives a written request for information that it wishes to withhold. Pursuant to section 552.301(b), the governmental body must ask for the attorney general's decision and state the exceptions that apply within ten business days after receiving the request. See Gov't Code § 552.301(a), (b). Within fifteen business days of receiving the request, the governmental body must submit to this office (1) written comments stating the reasons why the stated exceptions apply that would allow the information to be withheld, (2) a copy of the written request for information, (3) a signed statement or sufficient evidence showing the date the governmental body received the written request, and (4) a copy of the specific information requested or representative samples, labeled to indicate which exceptions apply to which parts of the documents. Gov't Code § 552.301(e)(1)(A)-(D).

You indicate that the district received the request for information on December 8, 2006. You inform this office that the district was closed from December 25, 2006 to January 5, 2007 and on January 16-17, 2007. Accordingly, you were required to submit your request for a decision to this office no later than December 22, 2006. Further, you were required to submit the items enumerated under section 552.301(e) to us no later than January 12, 2007. However, you did not request a ruling from or submit the required documents to this office until January 22, 2007. Accordingly, we find that the district failed to comply with the procedural requirements of section 552.301 in requesting an opinion from this office.

A governmental body's failure to comply with the procedural requirements of section 552.301 of the Government Code results in the legal presumption that the requested information is public and must be released unless the governmental body demonstrates a compelling reason to withhold the information from disclosure. See id. § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381-82 (Tex. App.--Austin 1990, no writ) (governmental body must make compelling demonstration to overcome presumption of openness pursuant to statutory predecessor to section 552.302); Open Records Decision No. 319 (1982). Normally, a compelling interest is demonstrated when some other source of law makes the information at issue confidential or third-party interests are at stake. See Open Records Decision No. 150 at 2 (1977). Because sections 552.101 and 552.102 of the Government Code can provide compelling reasons to withhold information, we will address the applicability of these exceptions to the submitted information.

Recently, the United States Department of Education Family Policy Compliance Office (the "DOE") informed this office that the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232(a), 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"). Determinations under FERPA must be made by the educational authority in possession of the education records. ⁽²⁾ We note that FERPA is not applicable to law enforcement records maintained by the district police department that were created by the department for a law enforcement purpose. See 20 U.S.C. § 1232g(a)(4)(B)(ii); 34 C.F.R. §§ 99.3, 99.8. You have submitted, among other things, education records that you state you have redacted pursuant to FERPA for our review. However, one of the submitted records still contains student information. Because our office is prohibited from reviewing these education records to determine whether appropriate redactions under FERPA have been made, we will not address the applicability of FERPA to any of the submitted records. However, we will consider the applicability of your claimed exceptions to disclosure of the submitted information.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Section 552.101 encompasses section 261.201(a) of the Family Code, which provides as follows:

(a) The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect made under this chapter and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation.

Fam. Code § 261.201(a). We note that the district is not an agency authorized to conduct a chapter 261 investigation. See id. § 261.103 (listing agencies that may conduct child abuse investigations). However, some of the records at issue involve reports of alleged or suspected abuse made to the Child Protective Services Division of the Texas Department of Family and Protective Services ("CPS"), as well as the identity of the person making the report and other information used or developed in an investigation by CPS. Upon review, we find that this information is within the scope of section 261.201 of the Family Code. Therefore, this information, which we have marked, is confidential pursuant to section 261.201 of the Family Code. Section 261.201(a) provides, however, that information encompassed by subsection (a) may be disclosed "for purposes consistent with [the Family Code] and applicable federal or state law." Id. § 261.201(a).

Section 22.082 of the Education Code provides that "[t]he State Board for Educator Certification ("SBEC") shall obtain from any law enforcement or criminal justice agency all criminal history record information ("CHRI") that relates to an applicant for or holder of a certificate." Educ. Code § 22.082. CHRI is defined as "information collected about a person by a criminal justice agency that consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, and other formal criminal charges and their dispositions." Gov't Code § 411.082(2). A school district may release CHRI to the Texas Education Agency ("TEA") and SBEC. Id. § 411.097(d); see also id. §§ 411.090 (SBEC is entitled to obtain CHRI from Texas Department of Public Safety ("DPS") about person who has applied to SBEC for certificate under Subchapter B, Chapter 21, Education Code), 411.087(a)(2) (agency that is entitled to obtain CHRI from DPS is also authorized to "obtain from any other criminal justice agency in this state criminal history record information maintained by that [agency]"); cf. Brookshire v. Houston Indep. Sch. Dist., 508 S.W.2d 675, 678-79 (Tex. Civ. App.--Houston [14^th Dist.] 1974, no writ) (when legislature defines term in one statute and uses same term in relation to same subject matter in latter statute, later use of term is same as previously defined).

The requestor is a staff investigator with the TEA, which has assumed the duties of SBEC. ⁽³⁾ The requestor states that TEA is conducting an investigation of an individual who has applied for or currently holds educator credentials. Thus, in this instance, sections 22.082 and 411.097 are applicable state laws. However, this office cannot determine whether the release of the CHRI is consistent with the Family Code. If CPS determines that release is consistent with the Family Code, the district must release information from the submitted documents that shows the type of allegations made and whether there was an arrest, information, indictment, detention, conviction, or other formal charges and their dispositions. See generally Open Records Decision No. 451 (1986) (specific statutory right of access provisions overcome general exceptions to disclosure under statutory predecessor to Act). In that instance, the district must withhold the remainder of the information pursuant to section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code.

If, however, CPS determines that release of the CHRI is not consistent with purposes of the Family Code, the distict must withhold the submitted information in its entirety pursuant to section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. See Open Records Decision No. 440 (1986) (addressing statutory predecessor to Fam. Code § 261.201).

Section 552.101 also encompasses section 21.355 of the Education Code, which 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. See Open Records Decision No. 643 (1996). In Open Records Decision No. 643, we determined that a "teacher" for purposes of section 21.355 means a person who (1) 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 (2) is engaged in the process of teaching, as that term is commonly defined, at the time of the evaluation. See id. at 4. Upon review, we agree some of the remaining information consists of evaluations. Thus, provided the employee at issue was required to hold and did hold the appropriate certificate and was teaching at the time of the submitted teaching evaluations, the information we have marked is confidential under section 21.355, and the district must withhold it under section 552.101 of the Government Code. See Abbott v. North East Indep. Sch. Dist., No. 03-04-00744-CV, 2006 WL 1293545 (Tex. App.-Austin May 12, 2006, no pet.) (concluding that written reprimand constitutes evaluation for purposes of Educ. Code § 21.355).

You claim that portions of the employee's submitted transcripts are excepted under section 552.102(b) of the Government Code. Section 552.102(b) excepts from disclosure all information from transcripts of professional public school employees other than the employee's name, the courses taken, and the degree obtained. Gov't Code § 552.102(b); Open Records Decision No. 526 (1989). Thus, with the exception of the employee's name, courses taken, and degree obtained, we find that section 552.102(b) is generally applicable to the submitted transcripts.

However, we note that the TEA's request states that it is seeking this information under the authority provided to the State Board for Educator Certification ("SBEC") by section 249.14 of title 19 of the Texas Administrative Code. ⁽⁴⁾ Accordingly, we will consider whether section 249.14 of title 19 of the Texas Administrative Code permits TEA to obtain information that is otherwise protected by the exceptions discussed above. See Open Records Decision No. 451 at 4 (1986) (specific access provision prevails over generally applicable exception to public disclosure).

Chapter 249 of title 19 of the Texas Administrative Code governs disciplinary proceedings, sanctions, and contested cases involving SBEC. See 19 T.A.C. § 249.1. Section 249.14 provides in relevant part:

(a) Staff [of TEA] may obtain and investigate information concerning alleged improper conduct by an educator, applicant, examinee, or other person subject to this chapter that would warrant the board denying relief to or taking disciplinary action against the person or certificate.

. . .

(c) The executive director and staff may also obtain and act on other information providing grounds for investigation and possible action under this chapter.

19 T.A.C. § 249.14. We note that this regulation does not specifically grant access to information subject to section 261.201 of the Family Code or section 21.355 of the Education Code. We further note that section 261.201 of the Family Code and section 21.355 of the Education Code each has its own access provisions governing release for the respective types of information to which each is applicable. Generally, if confidentiality provisions or another statute specifically authorize release of information under certain circumstances or to particular entities, then the information may only be released or transferred in accordance therewith. See Attorney General Opinions GA-0055 (2003) at 3-4 (SBEC not entitled to access teacher appraisals made confidential by section 21.355 of the Education Code where section 21.352 of the Education Code expressly authorizes limited release of appraisals to other school districts in connection with teachers' employment applications), DM-353 (1995) at 4-5 n.6 (detailed provisions in state law for disclosure of records would not permit disclosure "to other governmental entities and officials . . . without violating the record's confidentiality"), JM-590 (1986) at 5 ("express mention or enumeration of one person, thing, consequence, or class is tantamount to an express exclusion of all others"); Open Records Decision No. 655 (1997) (because statute permitted Department of Public Safety to transfer confidential criminal history information only to certain entities for certain purposes, county could not obtain information from the department regarding applicants for county employment). We also note that an interagency transfer of this information is not permissible where, as here, the applicable statutes enumerate the specific entities to which information encompassed by the statute 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 Opinion GA-0055.

Furthermore, where general and specific statutes are in irreconcilable conflict, the specific provision typically prevails as an exception to the general provision unless the general provision was enacted later and there is clear evidence that the legislature intended the general provision to prevail. See Gov't Code § 311.026(b); City of Lake Dallas v. Lake Cities Mun. Util. Auth., 555 S.W.2d 163, 168 (Tex. Civ. App.--Fort Worth 1977, writ ref'd n.r.e.). In this instance, although section 249.14 generally allows TEA access to information relating to suspected misconduct on the part of an educator, section 261.201 of the Family Code and section 21.355 of the Education Code specifically protect child abuse reports, investigative information and materials, and educator evaluations and specifically permit release to certain parties and in certain circumstances that do not include TEA's request in this instance. We therefore conclude that, notwithstanding section 249.14, the district must withhold the information that is excepted from disclosure based on sections 261.201 and 21.355. See also Open Records Decision No. 629 (1994) (provision of Bingo Enabling Act that specifically provided for non-disclosure of information obtained in connection with examination of books and records of applicant or licensee prevailed over provision that generally provided for public access to applications, returns, reports, statements and audits submitted to or conducted by Texas Alcoholic Beverage Commission). However, TEA has a right of access to the remaining submitted information relating to the educator's suspected misconduct pursuant to section 249.14, which prevails over the Act's exceptions to disclosure. Cf. Open Records Decision No. 525 (1989) (exceptions to disclosure do not apply to information made public by other statutes). Because section 552.102(b) does not have its own release provision, we conclude the district must release the rest of the information to TEA.

In summary, if CPS determines that release of the CHRI is consistent with the Family Code, then the CHRI must be released. ⁽⁵⁾ The remaining information, however, must be withheld under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. If, however, CPS determines that release is not consistent with the purposes of the Family Code, then the marked information must be withheld in its entirety pursuant to section 552.101 of the Government Code in conjunction with section 261.201(a) of the Family Code. The district must withhold the evaluations we have marked under section 21.355 in conjunction with section 552.101. Because TEA is requesting the information in an investigation under section 249.14 of title 19 of the Texas Administrative Code, the remaining information must be released to TEA in this instance.

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,

Kara A. Batey

Assistant Attorney General

Open Records Division

KAB/krl

Ref: ID# 274295

Enc. Submitted documents

c: Mr. Ruben Diaz

Staff Investigator

Texas Education Agency Office of Investigations

Educator Certification and Standards

1701 North Congress Avenue

Austin, Texas 78701-1494

(w/o enclosures)

Footnotes

1. A copy of this letter may be found on the Office of the Attorney General's website: http://www.oag.state.tx.us/opinopen/og_resources.shtml.

2. 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.

3. The 79^th Texas legislature passed House Bill 1116, which required the transfer of SBEC's administrative functions and services to the TEA, effective September 1, 2005.

4. Chapter 21 of the Education Code authorizes SBEC to regulate and oversee all aspects of the certification, continuing education, and standards of conduct of public school educators. See Educ. Code § 21.031(a). Section 21.041 of the Education Code states that SBEC may "provide for disciplinary proceedings, including the suspension or revocation of an educator certificate, as provided by Chapter 2001, Government Code." Id. § 21.041(b)(7). Section 21.041 also authorizes SBEC to "adopt rules as necessary for its own procedures." Id. § 21.041(a).

5. We note that, because the requestor may have a special right of access to this information in this instance, the district must again seek a decision from this office if it receives another request for the same information from another requestor.

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