August 7, 2012

Mr. Stephen Trautmann Jr.

For United Independent School District

Escamilla, Poneck & Cruz, L.L.P.

216 West Village Boulevard, Suite 202

Laredo, Texas 78041

OR2012-12378

Dear Mr. Trautmann:

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# 461468.

The United Independent School District (the "district"), which you represent, received a request for information concerning the missing activity funds at United High School during the 2011-2012 school year. You claim the submitted information is excepted from disclosure under sections 552.101, 552.107, 552.108, and 552.114 of the Government Code. ⁽¹⁾ We have considered the exceptions you claim and reviewed the submitted information.

Initially, we note the United States Department of Education Family Policy Compliance Office (the "DOE") has informed this office the Family Educational Rights and Privacy Act ("FERPA"), section 1232g of title 20 of the United States Code, 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⁾ Consequently, state and local educational authorities that receive a request for education records from a member of the public under the Act must not submit education records to this office in unredacted form, that is, in a form in which "personally identifiable information" is disclosed. See 34 C.F.R. § 99.3 (defining "personally identifiable information"). Based on your comments, we understand you to indicate the requested information contains personally identifiable information of a student, which you have submitted to this office for our review. Because our office is prohibited from reviewing this record to determine whether appropriate redactions under FERPA have been made, we will not address the applicability of FERPA to the submitted document. See 20 U.S.C. § 1232g(a)(1)(A). Such determinations under FERPA must be made by the educational authority in possession of such records. Likewise, we do not address your arguments under section 552.114 of the Government Code. See Gov't Code §§ 552.026 (incorporating FERPA into the Act), .114 (excepting from disclosure "student records"); Open Records Decision No. 539 (1990) (determining the same analysis applies under section 552.114 and FERPA). However, we will consider the applicability of your remaining claimed exceptions to disclosure of the submitted information.

Next, we note some of the information, which we have marked, is subject to section 552.022(a)(3) of the Government Code. Section 552.022(a)(3) provides for the required public disclosure of "information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[,]" unless the information is made confidential under the Act or other law. Gov't Code § 552.022(a)(3). Although you seek to withhold this information under section 552.108 of the Government Code, we note this is a discretionary exception to disclosure that protects a governmental body's interests and may be waived. See id. § 552.007; Open Records Decision Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 177 at 3 (1977) (statutory predecessor to section 552.108 subject to waiver). As such, section 552.108 does not make information confidential for purposes of section 552.022(a)(3), and the district may not withhold this information on that basis. However, some of the information contained in these records is subject to section 552.136 of the Government Code, which does make information confidential. ⁽³⁾ Accordingly, we will consider the applicability of section 552.136 to this information. We also will consider the applicability of section 552.108 to the remaining information not subject to section 552.022(a)(3) of the Government Code.

Section 552.136(b) of the Government Code provides, "[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." Gov't Code § 552.136(b); see id. § 552.136(a) (defining "access device"). Upon review, we find the district must withhold the partial credit card numbers, bank account, and bank routing numbers we have indicated under section 552.136 of the Government Code. ⁽⁴⁾

We turn next to the remaining information submitted as Exhibit C. Section 552.108(a)(1) of the Government Code excepts from disclosure "[i]nformation held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime . . . if . . . release of the information would interfere with the detection, investigation, or prosecution of crime[.]" Gov't Code § 552.108(a)(1). A governmental body claiming section 552.108 must reasonably explain how and why the release of the requested information would interfere with law enforcement. See id. §§ 552.108(a)(1), .301(e)(1)(A); see also Ex parte Pruitt, 551 S.W.2d 706 (Tex. 1977). We note section 552.108 is generally not applicable to information relating to an administrative investigation that did not result in a criminal investigation or prosecution. See Morales v. Ellen, 840 S.W.2d 519, 525-26 (Tex. Civ. App.-- El Paso 1992, writ denied) (statutory predecessor to section 552.108 not applicable to internal investigation that did not result in criminal investigation or prosecution); see also Open Records Decision No. 350 at 3-4 (1982). Section 552.108 may be invoked by any proper custodian of information relating to an investigation or prosecution of criminal conduct. Open Records Decision Nos. 474 at 4-5 (1987), 372 (1983). However, where one governmental body has custody of information that would otherwise qualify for exception under section 552.108 as information relating to the pending case of another law enforcement agency, the custodian of the records may withhold the information if it provides this office with (1) a demonstration that the information relates to the pending case, and (2) a representation from the entity with the law enforcement interest stating that entity wishes to withhold the information. You inform us the information at issue relates to a criminal case pending with the Webb and Zapata County District Attorney's Office (the "district attorney's office"). You have provided an affidavit from the district attorney's office stating the matter at issue is under investigation and release of the information would hinder the investigation. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.--Houston [14th Dist.] 1975) (court delineates law enforcement interests that are present in active cases), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976). Based upon these representations and our review, we conclude the district may withhold the remaining information at issue in Exhibit C under section 552.108(a)(1) of the Government Code based upon the district attorney's office's law enforcement interest.

Section 552.107(1) of the Government Code protects information coming within the attorney-client privilege. Gov't Code § 552.107(1). When asserting the attorney-client privilege, a governmental body has the burden of providing the necessary facts to demonstrate the elements of the privilege in order to withhold the information at issue. Open Records Decision No. 676 at 6-7 (2002). First, a governmental body must demonstrate that the information constitutes or documents a communication. Id. at 7. Second, the communication must have been made "for the purpose of facilitating the rendition of professional legal services" to the client governmental body. Tex. R. Evid. 503(b)(1). The privilege does not apply when an attorney or representative is involved in some capacity other than that of providing or facilitating professional legal services to the client governmental body. In re Tex. Farmers Ins. Exch., 990 S.W.2d 337, 340 (Tex. App.--Texarkana 1999, orig. proceeding) (attorney-client privilege does not apply if attorney acting in a capacity other than that of attorney). Governmental attorneys often act in capacities other than that of professional legal counsel, such as administrators, investigators, or managers. Thus, the mere fact that a communication involves an attorney for the government does not demonstrate this element. Third, the privilege applies only to communications between or among clients, client representatives, lawyers, lawyer representatives, and a lawyer representing another party in a pending action and concerning a matter of common interest therein. See Tex R. Evid. 503(b)(1). Thus, a governmental body must inform this office of the identities and capacities of the individuals to whom each communication at issue has been made. Lastly, the attorney-client privilege applies only to a confidential communication, id., meaning it was "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication." Id. 503(a)(5). Whether a communication meets this definition depends on the intent of the parties involved at the time the information was communicated. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.--Waco 1997, orig. proceeding). Section 552.107(1) generally excepts an entire communication that is demonstrated to be protected by the attorney-client privilege, unless otherwise waived by the governmental body. See Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) (privilege extends to entire communication, including facts contained therein). You state the correspondence submitted as Exhibit D was sent between the district's attorney and employees for the district in order to facilitate the rendition of legal services. You state these communications were intended to, and have remained, confidential. We note, however, one of the letters you have submitted was shared with a non-privileged party and may not be withheld under section 552.107(1). Accordingly, with the exception of this letter, which we have marked for release, the district may withhold the information in Exhibit D under section 552.107(1) of the Government Code.

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. Section 552.101 encompasses section 21.355 of the Education Code, which provides in part, "[a] document evaluating the performance of a teacher or administrator 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 or an administrator. See Open Records Decision No. 643 (1996). We have determined 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 ORD 643 at 4. You seek to withhold the administrative leave letter submitted as Exhibit E under section 21.355. However, you have failed to demonstrate how this information constitutes an evaluation for purposes of section 21.355. Accordingly, the district may not withhold this information under section 552.101 of the Government Code on that basis.

In summary, the district must release the records we have marked under section 552.022(a)(3) of the Government Code, but it must withhold the information we have indicated in those records under section 552.136 of the Government Code. The district may withhold the remaining information at issue in Exhibit C under section 552.108(a)(1) of the Government Code. With the exception of the letter we have marked for release, the district may withhold the information submitted as Exhibit D under section 552.107(1) of the Government 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,

Neal Falgoust

Assistant Attorney General

Open Records Division

NF/ag

Ref: ID# 461468

Enc. Submitted documents

c: Requestor

(w/o enclosures)

Footnotes

1. Although you raise Texas Rule of Evidence 503, we note section 552.107 is the proper exception to raise when asserting the attorney-client privilege for information not subject to section 552.022 of the Government Code.

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

3. 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).

4. Section 552.136 of the Government Code permits a governmental body to withhold this information without the necessity of requesting a decision from this office. See Gov't Code § 552.136(c)-(e).

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