February 15, 2011

Mr. John A. Kazen

Kazen, Meurer & Perez, L.L.P.

For Laredo Independent School District

P.O. Box 6237

Laredo, Texas 78042-6237

OR2011-02295

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# 409279.

The Laredo Independent School District (the "district"), which you represent, received a request for information pertaining to a named district employee, including information pertaining to the employee's schooling, most recent performance appraisal, current rate of pay, and any record of disciplinary action. You state you have released some of the requested information to the requestor. You claim that the submitted information is excepted from disclosure under section 552.101 of the Government Code. You state you have notified the employee to whom the requested information relates of his right to submit comments to this office pursuant to section 552.304 of the Government Code. See Gov't Code § 552.304 (any person may submit written comments stating why information at issue in request for Attorney General ruling should or should not be released). ⁽¹⁾ We have considered the exception you claim and reviewed the submitted information. We have also received and considered comments submitted by the requestor. See id.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Id. § 552.101. Section 552.101 encompasses information protected by other statutes, including 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 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 at 3 (1996). In Open Records Decision No. 643, we determined that for purposes of section 21.355, the word "teacher" means a person who is required to and does in fact hold a teaching certificate under subchapter B of chapter 21 of the Education Code and who is engaged in the process of teaching, as that term is commonly defined, at the time of the evaluation. See id. at 4. Similarly, an "administrator" is someone who is required to hold and does hold a certificate required under chapter 21 of the Education Code and is administering at the time of his or her evaluation. Id. We further determined that "teacher interns, teacher trainees, librarians, educational aids and counselors cannot be teachers or administrators for purposes of section 21.355." See id. at 5. We note the Third Court of Appeals has held a written reprimand constitutes an evaluation for purposes of section 21.355 because "it reflects the principal's judgment regarding [a teacher's] actions, gives corrective direction, and provides for further review." See Abbott v. North East Indep. Sch. Dist., 212 S.W.3d 364 (Tex. App.--Austin, 2006).

The district contends that the submitted information consists of evaluations and reprimands of an administrator who is a certified administrator under chapter 21 of the Education Code. However, we note that the employee in question is the district's Director of Transportation and is certified as an "Educational Secretary III" and "Educational Aide III." Thus, we find you have not shown how the named district employee is certified as a teacher or administrator and therefore have not shown the submitted information evaluates the performance of a teacher or administrator for purposes of section 21.355. Accordingly, the district may not withhold the submitted information under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code.

Section 552.101 of the Government Code also encompasses the common-law right of privacy, which protects information that is (1) highly intimate or embarrassing, such that its release would be highly objectionable to a reasonable person, and (2) not of legitimate concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976). Generally, the public has a legitimate interest in information that relates to public employment and public employees, and information that pertains to an employee's actions as a public servant generally cannot be considered beyond the realm of legitimate public interest. See Open Records Decisions Nos. 562 at 10 (1990) (personnel file information does not involve most intimate aspects of human affairs, but in fact touches on matters of legitimate public concern); 542 (1990); 470 at 4 (1987) (public has legitimate interest in job qualifications and performance of public employees); 444 at 5-6 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employees); 423 at 2 (1984) (scope of public employee privacy is narrow). Upon review, we find no portion of the submitted information is highly intimate or embarrassing or is not of legitimate public interest. Therefore, the district may not withhold any portion the submitted information under section 552.101 of the Government Code on the basis of common-law privacy. As no further exceptions to disclosure are raised, the submitted information must be released.

This letter ruling is limited to the particular information 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 information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free, at (888) 672-6787.

Sincerely,

Sarah Casterline

Assistant Attorney General

Open Records Division

SEC/vb

Ref: ID# 409279

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Arthur Raymond

LISD Director of Transportation

3006 Hendricks

Laredo, Texas 78041

(w/o enclosures)

Footnotes

1. As of the date of this letter, we have not received any arguments from the interested employee regarding the information at issue.

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer