March 27, 2012

Mr. Joseph E. Hoffer

For IDEA Public Schools

Schulman, Lopez & Hoffer, L.L.P.

517 Soledad Street

San Antonio, Texas 78205-1508

OR2012-04430

Dear Mr. Hoffer:

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# 448748.

IDEA Public Schools (the "school"), which you represent, received a request for eleven categories of information. You claim that portions of the submitted information are excepted from disclosure under sections 552.101, 552.104, 552.105, 552.110, 552.1235, 552.131, 552.136, and 552.139 of the Government Code. ⁽¹⁾ Additionally, you state release of this information may implicate the proprietary interests of a named third party. Accordingly, you have notified the party of the request and of its right to submit arguments to this office as to why its information should not be released. See Gov't Code § 552.305(d) (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (statutory predecessor to section 552.305 permitted governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under certain circumstances). We have received comments from the third party. We have considered the submitted arguments and reviewed the submitted information.

Initially, we note you have redacted portions of the submitted information pursuant to the federal Family Educational Rights and Privacy Act ("FERPA"), section 1232g of title 20 of the United States Code. 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. ⁽²⁾ The DOE has determined that FERPA determinations must be made by the educational authority in possession of the education records. However, we will consider your arguments against disclosure of the submitted information under the Act.

The school asserts that the submitted information may not be disclosed because it was made confidential by a "mutual nondisclosure agreement" with the third party. However, information is not confidential under the Act simply because the party submitting the information anticipates or requests that it be kept confidential. See Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976). In other words, a governmental body cannot, through an agreement or contract, overrule or repeal provisions of the Act. See Attorney General Opinion JM-672 (1987); Open Records Decision Nos. 541 at 3 (1990) ("[T]he obligations of a governmental body under [the predecessor to the Act] cannot be compromised simply by its decision to enter into a contract."), 203 at 1 (1978) (mere expectation of confidentiality by person supplying information does not satisfy requirements of statutory predecessor to section 552.110). Consequently, unless the information falls within an exception to disclosure, it must be released, notwithstanding any expectations or agreement specifying otherwise.

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 section encompasses information protected by other statutes. Section 21.355 of the Education Code provides, in relevant part, as follows:

(a) A document evaluating the performance of a teacher or administrator is confidential.

(b) Subsection (a) applies to a teacher or administrator employed by an open-enrollment charter school regardless of whether the teacher or administrator is certified under Subchapter B.

Educ. Code § 21.355(a), (b). 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 administrator. See Open Records Decision No. 643 (1996). You argue the information you have marked in Exhibit 7 consists of an evaluation of the named employee in her performance as a teacher at the school, an open-enrollment charter school. However, upon review, we find the information you have marked in Exhibit 7 does not constitute an evaluation that is confidential under section 21.355(a) of the Education Code and may not be withheld pursuant to section 552.101 of the Government Code.

We next address your claim under section 552.105 of the Government Code for the information you marked in Exhibits 4 and 8. Section 552.105 excepts from disclosure information relating to "appraisals or purchase price of real or personal property for a public purpose prior to the formal award of contracts for the property." Gov't Code § 552.105(2). Section 552.105 is designed to protect a governmental body's planning and negotiating position with respect to particular transactions. Open Records Decision Nos. 564 at 2, 357 (1982), 310 (1982). Information that is excepted from disclosure under section 552.105 that pertains to such negotiations may be excepted from disclosure so long as the transaction relating to that information is not complete. See ORD 310. But the protection offered by section 552.105 is not limited solely to transactions not yet finalized. This office has concluded that information about specific parcels of land obtained in advance of other parcels to be acquired for the same project could be withheld where release of the information would harm the governmental body's negotiating position with respect to the remaining parcels. See ORD 564 at 2. A governmental body may withhold information "which, if released, would impair or tend to impair [its] 'planning and negotiating position in regard to particular transactions.'" ORD 357 at 3 (quoting Open Records Decision No. 222 (1979)). The question of whether specific information, if publicly released, would impair a governmental body's planning and negotiating position with regard to particular transactions is a question of fact. Accordingly, this office will accept a governmental body's good-faith determination in this regard, unless the contrary is clearly shown as a matter of law. See ORD 564.

You state the school has made a good-faith determination that the information at issue relates to the appraisal or purchase price of property the school intends to purchase. You explain the school has not yet purchased the property at issue and assert release of this information would harm the school's negotiating position with respect to the acquisition of this property. Based on your representations and our review, we conclude the school may withhold the information you have marked in Exhibits 4 and 8 under section 552.105 of the Government Code. ⁽³⁾

Section 552.117 of the Government Code excepts from disclosure the home address and telephone number, emergency contact information, social security number, and family member information of current or former officials or employees of a governmental body who request this information be kept confidential under section 552.024 of the Government Code. ⁽⁴⁾ Gov't Code § 552.117(a). We note section 552.117 also encompasses a personal cellular telephone or pager number, unless the cellular or pager service is paid for by a governmental body. See Open Records Decision No. 506 at 5-7 (1988) (statutory predecessor to section 552.117 not applicable to cellular telephone numbers provided and paid for by governmental body and intended for official use). Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Thus, information may be withheld under section 552.117(a)(1) only on behalf of a current or former employee who made a request for confidentiality under section 552.024 prior to the date of the governmental body's receipt of the request for the information. Information may not be withheld under section 552.117(a)(1) on behalf of a current or former employee who did not timely request under section 552.024 the information be kept confidential. We have marked cellular telephone numbers of school employees. To the extent the individuals at issue timely requested confidentiality under section 552.024 of the Government Code and the cellular telephone service is paid for with personal funds, the school must withhold the cellular telephone numbers we have marked under section 552.117(a)(1) of the Government Code.

Next, you claim section 552.136 of the Government Code for the information you have marked in Exhibit 6. Section 552.136(b) states that "[n]otwithstanding any other provision of [the Act], a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential." Id. § 552.136(b); see id. § 552.136(a) (defining "access device"). You state the submitted password and encrypted web access link may be used to obtain a thing of value as the State of Texas and Local Education Agency use the information at issue to access FERPA protected student records and state audit working papers. Upon review, we find the school must withhold the information you have marked in Exhibit 6 pursuant to section 552.136 of the Government Code. ⁽⁵⁾

Section 552.137 of the Government Code excepts from disclosure "an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body," unless the member of the public consents to its release or the e-mail address is of a type specifically excluded by subsection (c). ⁽⁶⁾ Gov't Code § 552.137(a)-(c). The e-mail addresses we have marked are not a type specifically excluded by section 552.137(c). Accordingly, the school must withhold these e-mail addresses under section 552.137 of the Government Code unless the owners of the e-mail addresses have affirmatively consented to their release under section 552.137(b). ⁽⁷⁾

Section 552.1235 of the Government Code excepts from disclosure "[t]he name or other information that would tend to disclose the identity of a person, other than a governmental body, who makes a gift, grant, or donation of money or property to an institution of higher education[.]" Gov't Code § 552.1235(a). "Institution of higher education" is defined by section 61.003 of the Education Code. Id. § 552.1235(c). Section 61.003 defines an "[i]nstitution of higher education" as "any public technical institute, public junior college, public senior college or university, medical or dental unit, public state college, or other agency of higher education as defined in this section." See Educ. Code § 61.003.

You assert the information you have marked in Exhibit 5 under section 552.1235 pertains to an individual "who has made or offered to make a gift or donation of money to a needy former student of [the school] with the intent that the money be utilized at an institution of higher education." However, we find you have failed to demonstrate this information identifies the individual in his actual capacity as a donor to an institution of higher education for purposes of section 552.1235. Accordingly, the school may not withhold the information you have marked in Exhibit 5 under section 552.1235 of the Government Code.

In summary, the school may withhold the information you have marked in Exhibits 4 and 8 under section 552.105 of the Government Code. To the extent the individuals at issue timely requested confidentiality under section 552.024 of the Government Code and the cellular telephone service is paid for with personal funds, the school must withhold the cellular telephone numbers we have marked under section 552.117(a)(1) of the Government Code. The school must withhold the information you have marked in Exhibit 6 pursuant to section 552.136 of the Government Code. The school must withhold the e-mail addresses we have marked under section 552.137 of the Government Code unless the owners of the e-mail addresses have affirmatively consented to their release under section 552.137(b). 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,

Sean Opperman

Assistant Attorney General

Open Records Division

SO/dls

Ref: ID# 448748

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Mr. Kerry T. Benedict

Cox Smith Matthews Incorporated

112 East Pecan Street, Suite 1800

San Antonio, Texas 78205

(w/o enclosures)

Footnotes

1. Although you raise sections 552.022 and 552.305 of the Government Code, we note that these sections are not exceptions to disclosure under the Act. Rather, section 552.022 enumerates categories of information that are not excepted from disclosure unless they are expressly confidential under other law. See Gov't Code § 552.022. Section 552.305 addresses the procedural requirements for notifying third parties that their interests may be affected by a request for information. Id. § 552.305.

2. A copy of this letter may be found on the attorney general's website at http://www.oag.state.tx.us/open/20060725usdoe.pdf.

3. As our ruling is dispositive for this information, we need not address your remaining arguments against its disclosure.

4. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

5. As our ruling is dispositive for this information, we need not address your remaining argument against its disclosure.

6. The Office of the Attorney General will raise a mandatory exception on behalf of a governmental body, but ordinarily will not raise other exceptions. See Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

7. We note this office issued Open Records Decision No. 684 (2009), a previous determination to all governmental bodies authorizing them to withhold ten categories of information, including an e-mail address of a member of the public under section 552.137 of the Government Code, without the necessity of requesting an attorney general decision.

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