May 21, 2012

Ms. Ellen House

School Attorney

Midland Independent School District

615 West Missouri

Midland, Texas 79701-5092

OR2012-07604

Dear Ms. House:

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# 454666.

The Midland Independent School District (the "district") received a request for information pertaining to a former named employee and the district's policy on handling allegations of sexual assault. You state you have released some of the requested information. You claim the submitted information is excepted from disclosure under section 552.101 of the Government Code. 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 other statutes make confidential. Section 21.048 of the Education Code provides, in relevant part, the following:

The results of an examination administered under this section are confidential and are not subject to disclosure under Chapter 552, Government Code, unless:

(1) the disclosure is regarding notification to a parent of the assignment of an uncertified teacher to a classroom as required by Section 21.057; or

(2) the educator has failed the examination more than five times.

Educ. Code § 21.048(c-1). The information in Attachment 3 consists of teacher certification exam results. You state subsections 21.048(c-1)(1) and (2) are not applicable in this instance. Based on your representations and our review, we find the district must withhold Attachment 3 under section 552.101 of the Government Code in conjunction with section 21.048(c-1) of the Education Code.

Section 552.101 of the Government Code also encompasses section 21.355 of the Education Code, which provides, "[a] document evaluating the performance of a teacher . . . is confidential." See Educ. Code § 21.355(a). 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. See Open Records Decision No. 643 (1996). We have determined for purposes of section 21.355, the term "teacher" means a person who is required to and does in fact hold a teaching certificate or permit 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 ORD 643 at 4. 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 assert the information submitted as Attachment 7 consists of teacher evaluations and letters of reprimands pertaining to the named former employee. You have provided a copy of this individual's educator certificate, indicating he holds certification under subchapter B of chapter 21 of the Education Code. You state the individual at issue performed the duties of a teacher and the duties of a coach. Based on your representations and our review of the information, we find the information we have marked in Attachment 7 is confidential under section 21.355 of the Education Code, and the district must withhold this information under section 552.101 of the Government Code. However, we note the remaining information in Attachment 7 consists of evaluations and a reprimand relating to the teacher's duties as a coach. Upon review, we conclude you have failed to demonstrate how this information consists of evaluations as contemplated by section 21.355 of the Education Code. See Educ. Code § 21.353 (teachers shall be appraised only on basis of classroom teaching performance and not in connection with extracurricular activities). Accordingly, the district may not withhold the remaining information in Attachment 7 under section 552.101 of the Government Code in conjunction with section 21.355(a) of the Education Code.

In summary, the district must withhold Attachment 3 under section 552.101 of the Government Code in conjunction with section 21.048(c-1) of the Education Code. The district must withhold the information we marked in Attachment 7 under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. 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,

Paige Lay

Assistant Attorney General

Open Records Division

PL/bhf

Ref: ID# 454666

Enc. Submitted documents

cc: Requestor

(w/o enclosures)

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