 ATTORNEY GENERAL OF TEXAS GREG ABBOTT | |
 |
February 1, 2008 Mr. W. Montgomery Meitler Assistant Counsel Office of Legal Services Texas Education Agency 1701 North Congress Avenue Austin, Texas 78701-1494 Mr. Christopher M. Jones Senior Counsel Texas Education Agency 1701 North Congress Avenue Austin, Texas 78701-1494 OR2008-01382 Dear Mr. Meitler and Mr. Jones: 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# 300941. The Texas Education Agency (the "agency") received a request for all information concerning a Texas Assessment of Knowledge and Skills ("TAKS") testing incident at a particular school. You claim that the requested information is excepted from disclosure under sections 552.111 and 552.116 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information. (1) Initially, we note that you have submitted information that does not relate to the TAKS testing incident and, therefore, is not responsive to the request. This decision does not address the public availability of the non-responsive information. Therefore, this information, which we have marked, need not be released in response to this request. We also 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. (2) 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. (3) However, we will consider your claimed exceptions against the disclosure of the responsive information. Section 552.116 of the Government Code provides as follows: (a) An audit working paper of an audit of the state auditor or the auditor of a state agency, an institution of higher education as defined by Section 61.003, Education Code, a county, a municipality, or a joint board operating under Section 22.074, Transportation Code, is excepted from the requirements of Section 552.021. If information in an audit working paper is also maintained in another record, that other record is not excepted from the requirements of Section 552.021 by this section. (b) In this section: (1) "Audit" means an audit authorized or required by a statute of this state or the United States, the charter or an ordinance of a municipality, an order of the commissioners court of a county, or a resolution or other action of a joint board described by Subsection (a) and includes an investigation. (2) "Audit working paper" includes all information, documentary or otherwise, prepared or maintained in conducting an audit or preparing an audit report, including: (A) intra-agency and interagency communications; and (B) drafts of the audit report or portions of those drafts. Gov't Code § 552.116. You state that the requested information was "prepared and [is] maintained by [the agency] in conducting investigations of testing irregularities in the administration of statewide assessment instruments." You further explain that the investigations are authorized by section 39.075(a)(8) of the Education Code. See Educ. Code § 39.075 (listing circumstances in which the commissioner shall authorize investigations). Based on your representations and our review of the responsive information, we agree that the requested information constitutes audit working papers that the agency may withhold under section 552.116. (4) 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 file suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such a challenge, 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 challenge 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, Nancy E. Griffiths Assistant Attorney General Open Records Division NEG/jb Ref: ID# 300941 Enc. Submitted documents c: Ms. Melissa Chrane Bates P.O. Box 855 Leakey, Texas 78873 (w/o enclosures)
1. We assume that the representative sample of records submitted to this office is truly representative
of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open
records letter does not reach, and therefore does not authorize the withholding of, any other requested records
to the extent that those records contain substantially different types of information than that submitted to this
office.
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 agency does obtain parental consent to submit unredacted education records, and
the agency seeks a ruling from this office on the proper redaction of those education records in compliance with
FERPA, we will rule accordingly.
As our ruling is dispositive, we need not address your remaining argument against disclosure. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |