February 9, 2012

Ms. Melanie L. Hollmann

Atkins, Hollmann, Jones, Peacock, Lewis & Lyon, P.C.

3800 East 42nd Street, Suite 500

Odessa, Texas 79762

OR2012-02090

Dear Ms. Hollman:

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# 444898.

The Ector County Independent School District (the "district"), which you represent, received a request for salary information for specified categories of district employees, a named former employee's personnel file, and information pertaining to disciplinary actions or complaints against the named former employee. You state the district has released some of the requested information with the redaction of student identifying information pursuant to the Family Educational Rights and Privacy Act ("FERPA"), section 1232g of title 20 of the United States Code. ⁽¹⁾ You claim some of the submitted information is excepted from disclosure under section 552.101 of the Government Code. ⁽²⁾ We have considered the exception you claim and reviewed the submitted information.

Section 552.101 of the Government Code 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, such as 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 or an administrator. See Open Records Decision No. 643 at 3 (1996). We have determined the word "administrator" for purposes of section 21.355 means a person who (1) is required to, and does in fact, hold an administrator's certificate under subchapter B of chapter 21 of the Education Code, and (2) is performing the functions of an administrator, as that term is commonly defined, at the time of the evaluation. Id. The Third Court of Appeals has concluded 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, no pet.).

You contend portions of the submitted information constitute confidential evaluations of administrators. You provide documentation showing the administrators were certified by the State Board for Educator Certification. You indicate the administrators were acting as administrators at the time of the evaluations. Based on your representations and our review, we find the district must withhold the information we marked under section 552.101 in conjunction with section 21.355 of the Education Code. However, we note the remaining information at issue consists of e-mails between the administrator and district employees unrelated to evaluating the performance of any teacher or administrator and an administrator's notes, meeting notes, and statement regarding a reprimand. Upon review, we find this information does not constitute evaluations under section 21.355 of the Education Code. Therefore, the district may not withhold the remaining information under section 552.101 on that basis. As you raise no further exceptions, the remaining 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,

Jennifer Luttrall

Assistant Attorney General

Open Records Division

JL/dls

Ref: ID# 444898

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. We note the United States Department of Education Family Policy Compliance Office (the "DOE") has informed this office that FERPA does not permit a state educational agency or institution to disclose to this office, without parental or an adult student's consent, unredacted, personally identifiable information contained in education records for the purpose of our review in the open records ruling process under the Act. See 34 C.F.R. § 99.3 (defining "personally identifiable information"). The DOE has determined that FERPA determinations must be made by the educational institution from which the education records were obtained. A copy of the DOE's letter to this office may be found on the Office of the Attorney General's website: http://www.oag.state.tx.us/open/20060725usdoe.pdf.

2. Although you also raised section 552.102 of the Government Code, you have not submitted any arguments regarding the applicability of this exception nor have you identified any information you seek to withhold under this exception. Therefore, we assume you do not assert this exception to disclosure. See Gov't Code §§ 552.301, .302.

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