March 22, 2011

Mr. Robb D. Decker

Walsh, Anderson, Brown, Gallegos and Green, P.C.

For Southwest Independent School District

P.O. Box 460606

San Antonio, Texas 78246

OR2011-03900

Dear Mr. Decker:

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# 411909.

The Southwest Independent School District (the "district"), which you represent, received a request from a Texas Education Agency ("TEA") investigator for employment, disciplinary, identification, contact, and other records pertaining to a named district employee. You state the district has provided some of the requested information to the requestor. You claim portions of the submitted transcripts, payroll records, and personnel action memorandum are 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.

The TEA investigator's request states he is seeking the requested 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. ⁽¹⁾ Chapter 249 of title 19 of the Texas Administrative Code governs disciplinary proceedings, sanctions, and contested cases involving SBEC. See 19 T.A.C. § 249.4. Section 249.14 provides, in relevant part:

(a) The [TEA] staff 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 [SBEC] denying relief to or taking disciplinary action against the person or certificate.

. . .

(c) The TEA 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(a), (c). In this instance, the TEA requestor states he is investigating alleged educator misconduct or criminal history information pertaining to the named district employee. He explains he needs the requested records to conduct a full and complete investigation to determine whether or not disciplinary action relating to the named employee's educator certification is warranted. Thus, we find the submitted information is subject to the right of access afforded to the TEA under section 249.14.

You seek to withhold some of the submitted information under sections 552.102(a) and 552.102(b) of the Government Code. ⁽²⁾ Furthermore, you state the district will redact a portion of the information under section 552.136 of the Government Code pursuant to Open Records Decision No. 684 (2009). ⁽³⁾ These sections, however, are general exceptions to disclosure. A specific statutory right of access prevails over general exceptions to disclosure under the Act. See Open Records Decision Nos. 613 at 4 (1993) (exceptions in Act cannot impinge on statutory right of access to information), 451 at 4 (1986) (specific statutory right of access provisions overcome general exceptions to disclosure under the Act). Therefore, the requestor's statutory right of access under section 249.14 prevails and the district may not withhold any of the submitted information under section 552.102(a), section 552.102(b), or section 552.136 of the Government Code. Although you also assert some of the submitted information is excepted under section 552.101 of the Government Code in conjunction with common-law privacy, a statutory right of access generally prevails over the common law. ⁽⁴⁾ Centerpoint Energy Houston Elec. LLC v. Harris County Toll Road, 436 F.3d 541, 544 (5th Cir. 2006) (common law controls only where there is no conflicting or controlling statutory law); Attorney General Opinion GA-0290 at 4 (2005) (noting valid rules of administrative agencies have the same "for and effect of legislation"). Consequently, the district may not withhold any of the submitted information under section 552.101 of the Government Code in conjunction with common-law privacy. Therefore, the district must release the submitted information to the TEA requestor pursuant to section 249.14 of title 19 of the Texas Administrative Code. ⁽⁵⁾

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,

Leah B. Wingerson

Assistant Attorney General

Open Records Division

LBW/dls

Ref: ID# 411909

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. 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 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).

2. Section 552.102(a) protects information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. See Gov't Code § 552.102(a). Section 552.102(b) excepts from disclosure a transcript from an institution of higher education maintained in a professional public school employee's personnel file, except for the degree obtained or the curriculum. See id. § 552.102(b).

3. Open Records Decision No. 684 is a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including bank account numbers under section 552.136 of the Government Code, without the necessity of requesting an attorney general decision.

4. Common-law privacy under section 552.101 protects highly intimate or embarrassing information, the publication of which would be highly objectionable to a reasonable person, that is not a matter of legitimate public interest. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685 (Tex. 1976).

5. Because the TEA has a right of access to certain information in the submitted records that might otherwise be excepted from release under the Act, the district must again seek a decision from this office if it receives a request for this information from a different requestor without such a right of access.

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