 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
April 18, 2007 Ms. Beverly Davidek OR2007-04352 Dear Ms. Davidek: 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# 276006. The San Antonio Independent School District (the "district"), which you represent, received a request for information relating to one of the district's teachers. You seek to withhold the submitted information under sections 552.026, 552.101, 552.103, 552.111, 552.114, and 552.135 of the Government Code, Texas Rule of Evidence 503, Texas Rule of Civil Procedure 192.5, and the federal Family Educational Rights and Privacy Act ("FERPA"), section 1232g of title 20 of the United States Code. We have considered your arguments and have reviewed the information you submitted. We note that the United States Department of Education Family Policy Compliance Office (the "DOE") has informed this office that FERPA 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 for our review, among other things, redacted education records that you seek to withhold under sections 552.026 and 552.114 of the Government Code and FERPA. See Gov't Code §§ 552.026 (incorporating FERPA into Act), 552.114 (excepting "student records" from public disclosure); Open Records Decision No. 539 (1990) (same analysis applies under Gov't Code § 552.114 and FERPA). Because our office is prohibited from reviewing education records to determine whether appropriate redactions have been made under FERPA, we will not address the applicability of FERPA to any of the submitted documents. Such determinations under FERPA must be made by the educational authority in possession of the education records. (2) Likewise, we will not address your claim under section 552.114. However, we will consider your other arguments against disclosure of the submitted information. We next note that the district failed to submit some of the information at issue within the 15-business-day period prescribed by section 552.301 of the Government Code. See Gov't Code § 552.301(e)(1)(D). Therefore, that information is presumed to be public and must be released, unless there is a compelling reason for non-disclosure. See id. § 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App. - Austin 1990, no writ); Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). The district's claims under sections 552.103 and 552.111 of the Government Code, Texas Rule of Evidence 503, and Texas Rule of Civil Procedure 192.5 are not compelling reasons for non-disclosure. 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 Gov't Code § 552.103); Open Records Decision Nos. 677 at 10 (2002) (attorney work product privilege under Gov't Code § 552.111 may be waived), 665 at 2 n.5 (discretionary exceptions generally), 470 at 7 (1987) (statutory predecessor to Gov't Code § 552.111 subject to waiver). However, we will consider whether the district may withhold the information that was not timely submitted under section 552.101 of the Government Code, as the applicability of that exception can overcome the statutory presumption that information must be released. 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. This exception encompasses information that other statutes make confidential. Section 261.201 of the Family Code provides in part: (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 [the Family 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 [chapter 261 of the Family Code] 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 [chapter 261 of the Family Code] or in providing services as a result of an investigation. Fam. Code § 261.201(a). We find that the information that was not timely submitted falls within the scope of section 261.201(a). As you do not indicate that the district has adopted any rule that governs the release of this type of information, we assume that no such rule exists. Given that assumption, we conclude that the district must withhold the information in question, which we have marked, under 552.101 of the Government Code in conjunction with section 261.201 of the Family Code. See Open Records Decision No. 440 at 2 (1986) (addressing predecessor statute). We next note that the remaining documents include a completed report that is subject to section 552.022 of the Government Code. Section 552.022(a)(1) provides for the required public disclosure of "a completed report, audit, evaluation, or investigation made of, for, or by a governmental body," unless the information is expressly confidential under other law or excepted from disclosure under section 552.108. Gov't Code § 552.022(a)(1). Sections 552.103 and 552.111 are discretionary exceptions to disclosure and, as such, are not other law that makes information confidential for the purposes of section 552.022. See id. § 552.007; Dallas Area Rapid Transit v. Dallas Morning News, 4 S.W.3d at 475-76; Open Records Decision Nos. 677 at 10, 470 at 7 (1987). Therefore, the district may not withhold any of the information contained in the completed report under section 552.103 or section 552.111. The Texas Supreme Court has held, however, that the Texas Rules of Evidence and the Texas Rules of Civil Procedure are "other law" within the meaning of section 552.022. See In re City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001). Accordingly, we will consider whether the district may withhold any of the information in the completed report under Texas Rule of Evidence 503 or Texas Rule of Civil Procedure 192.5. We also will consider your arguments against disclosure of the remaining information. Texas Rule of Evidence 503 enacts the attorney-client privilege. Rule 503(b)(1) provides as follows: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: (A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer; (B) between the lawyer and the lawyer's representative; (C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein; (D) between representatives of the client or between the client and a representative of the client; or (E) among lawyers and their representatives representing the same client. Tex. R. Evid. 503(b)(1). A communication is "confidential" if 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). Thus, in order to withhold attorney-client privileged information from disclosure under rule 503, a governmental body must: (1) show that the document is a communication transmitted between privileged parties or reveals a confidential communication; (2) identify the parties involved in the communication; and (3) show that the communication is confidential by explaining that it was not intended to be disclosed to third persons and that it was made in furtherance of the rendition of professional legal services to the client. Upon a demonstration of all three factors, the information is privileged and confidential under rule 503, provided the client has not waived the privilege or the document does not fall within the purview of the exceptions to the privilege enumerated in rule 503(d). Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App. - Houston [14th Dist.] 1993, no writ). In this instance, you have not demonstrated that the completed report either constitutes or documents an attorney-client communication. See Gov't Code § 552.301(e)(1)(A) (governmental body must explain why stated exception applies); Open Records Decision No. 676 at 6-7 (governmental body must demonstrate applicability of attorney-client privilege to information at issue). We therefore conclude that the district may not withhold any of the information in the completed report under rule 503. Texas Rule of Civil Procedure 192.5 encompasses the attorney work product privilege. For the purposes of section 552.022 of the Government Code, information is confidential under rule 192.5 only to the extent that the information implicates the core work product aspect of the work product privilege. See Open Records Decision No. 677 at 9-10 (2002). Rule 192.5 defines core work product as the work product of an attorney or an attorney's representative, developed in anticipation of litigation or for trial, that contains the mental impressions, opinions, conclusions, or legal theories of the attorney or the attorney's representative. See Tex. R. Civ. P. 192.5(a), (b)(1). Accordingly, in order to withhold attorney core work product from disclosure under rule 192.5, a governmental body must demonstrate that the material was (1) created for trial or in anticipation of litigation and (2) consists of the mental impressions, opinions, conclusions, or legal theories of an attorney or an attorney's representative. Id. The first prong of the work product test, which requires a governmental body to show that the information at issue was created in anticipation of litigation, has two parts. A governmental body must demonstrate that (1) a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue, and (2) the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation. See Nat'l Tank v. Brotherton, 851 S.W.2d 193, 207 (Tex. 1993). A "substantial chance" of litigation does not mean a statistical probability, but rather "that litigation is more than merely an abstract possibility or unwarranted fear." Id. at 204. The second part of the work product test requires the governmental body to show that the materials at issue contain the mental impressions, opinions, conclusions, or legal theories of an attorney's or an attorney's representative. See Tex. R. Civ. P. 192.5(b)(1). A document containing core work product information that meets both parts of the work product test is confidential under rule 192.5, provided that the information does not fall within the scope of the exceptions to the privilege enumerated in rule 192.5(c). See Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 427 (Tex. App. - Houston [14th Dist.] 1993, no writ). You have not demonstrated that the information in the completed report reflects the mental impressions, opinions, conclusions, or legal theories of an attorney's or an attorney's representative. Therefore, the district may not withhold any of the information in the completed report under rule 192.5. As you claim no other exception to the disclosure of the completed report, it must be released in accordance with section 552.022 of the Government Code. We have marked that information accordingly. With respect to the remaining information, we next address section 552.103. This exception 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). A governmental body that claims an exception to disclosure under section 552.103 must provide relevant facts and documents sufficient to establish the applicability of this exception to the information at issue. To meet this burden, the governmental body must demonstrate that: (1) litigation was pending or reasonably anticipated on the date of its receipt of the request for information; and (2) the information at issue is related to the pending or anticipated litigation. See Univ. of Tex. Law Sch. v. Tex. Legal Found., 958 S.W.2d 479 (Tex. App. - Austin1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App. - Houston [1st Dist.] 1984, writ ref'd n.r.e.). Both elements of the test must be met in order for information to be excepted from disclosure under section 552.103. See Open Records Decision No. 551 at 4 (1990). The question of whether litigation is reasonably anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986). To establish that litigation is reasonably anticipated, a governmental body must provide this office with "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." (3) Id. You inform us that the remaining information relates to an ongoing investigation of a teacher whose conduct appears to provide grounds for termination for cause. You state that the teacher's attorney, the requestor, has informed the district that the teacher denies the allegations and demands a hearing regarding any disciplinary action taken against him. You indicate that the hearing would be conducted under chapter 21 of the Education Code. You point out that the request is for "all documents that have been and will be considered for [the] disciplinary process." Section 21.256 of the Education Code provides that hearings requested under section 21.253 of the Education Code "shall be conducted in the same manner as a trial without a jury in a district court of [Texas]." Educ. Code § 21.256(e). Section 21.256 also specifically affords a teacher the right to be represented by a representative of the teacher's choice; the right to hear the evidence on which the charges are based; the right to cross-examine each adverse witness; and the right to present evidence. See id. § 21.256(c). Section 21.256(d) provides that the Texas Rules of Evidence apply at the hearing. See id. § 21.256(d). We also note that, in a chapter 21 hearing, the hearing examiner may issue subpoenas for the attendance of witnesses and the production of documents; an appeal of the proceedings to the commissioner of education is based only on the record of the local hearing; and in a judicial appeal of the commissioner's decision, the court must review the evidence pursuant to the substantial evidence rule. Id. §§ 21.255(a) (subpoena power of examiner), 21.301(c) (appeal based solely on local record), 21.307(e) (substantial evidence rule for judicial review). Having considered your arguments, we conclude that litigation in the form of a hearing under chapter 21 of the Education Code was reasonably anticipated when the district received this request for information. See Open Records Decision Nos. 588 (1991) (contested case under Administrative Procedure Act, Gov't Code ch. 2001, qualifies as litigation under statutory predecessor to Gov't Code § 552.103), 301 (1982) (litigation includes contested case before administrative agency). We also conclude that the rest of the submitted information is related to the anticipated litigation. Therefore, section 552.103 is generally applicable to the remaining information. In reaching this conclusion, we assume that the opposing party in the anticipated litigation has not seen or had access to the remaining information. The purpose of section 552.103 is to enable a governmental body to protect its position in litigation by forcing parties seeking information relating to that litigation to obtain it through discovery procedures. See Open Records Decision No. 551 at 4-5 (1990). If the opposing party has seen or had access to information relating to anticipated litigation, through discovery or otherwise, then there is no interest in withholding the information from public disclosure under section 552.103. See Open Records Decision Nos. 349 (1982), 320 (1982). We also note that the applicability of section 552.103 ends once the related litigation concludes or is no longer reasonably anticipated. See Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982). In summary: (1) the district must withhold the information that we have marked under section 552.101 of the Government Code in conjunction with section 261.201 of the Family Code; (2) the district must release the marked information that is subject to section 552.022(a)(1) of the Government Code; and (3) the district may withhold the rest of the submitted information under section 552.103 of the Government Code. As we are able to make these determinations, we need not address your other arguments against disclosure. 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 consist of "education records" that must be withheld under 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, James W. Morris, III Assistant Attorney General Open Records Division JWM/jb Ref: ID# 276006 Enc: Submitted documents c: Mr. Herman H. Segovia Law Office of Herman H. Segovia 118 East Ashby San Antonio, Texas 78212 (w/o enclosures)
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.
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.
Among other examples, this office has concluded that litigation was reasonably anticipated where the
opposing party took the following objective steps toward litigation: (1) filed a complaint with the Equal
Employment Opportunity Commission ("EEOC"), see Open Records Decision No. 336 (1982); (2) hired an
attorney who made a demand for disputed payments and threatened to sue if the payments were not made
promptly, see Open Records Decision No. 346 (1982); and (3) threatened to sue on several occasions and hired
an attorney, see Open Records Decision No. 288 (1981). POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |