|Office of the Attorney General - State of Texas
June 25, 1999
Ms. Bertha Bailey Whatley
Dear Ms. Whatley:
You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 125366.
The Fort Worth Independent School District (the "district") received a request for information concerning a specific investigation. You state that some of the requested information has been released. You claim, however, that the information submitted as Confidential Enclosures 4 and 5 is excepted from disclosure under sections 552.101, 552.103, and 552.107 of the Government Code. We have considered the exceptions you claim and have reviewed the representative sample documents.(1)
Initially, you assert that the document submitted as Confidential Enclosure 4 is an education record protected from public disclosure by the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g. The district may withhold from disclosure information that is protected by FERPA without the necessity of requesting a decision from this office. Open Records Decision No. 634 (1995). However, as you have sought a decision from this office, we will address your arguments against disclosure. Section 552.026 of the Government Code excepts from disclosure educational records unless released in conformity with FERPA. FERPA provides that federal funding shall not be made available to "any educational agency or institution which has a policy or practice of permitting the release of educational records" of students without the written consent of the parents of a minor student. 20 U.S.C. § 1232g(b)(1). Education records are those records that "contain information directly related to a student and are maintained by an educational agency or institution." Id. § 1232g(a)(4)(A). Generally, only information which would serve to identify the student is excepted from disclosure under FERPA. Open Records Decision No 332 at 3 (1982). We agree that the submitted document is an education record under FERPA, and, therefore, must be withheld from disclosure to the extent "reasonable and necessary to avoid personally identifying a particular student." See Open Records Decision Nos. 539 (1990), 332 (1982), 206 (1978). In this instance, the district must withhold the submitted document in its entirety in order to satisfy the requirements of FERPA. See Open Records Decision No. 224 (1979).
Next, you assert that Confidential Enclosure 5 may be withheld under section 552.103. To secure the protection of section 552.103(a), a governmental body must demonstrate that requested information "relates" to a pending or reasonably anticipated judicial or quasi-judicial proceeding. Open Records Decision No. 551 (1990). A contested case under the Administrative Procedure Act ("APA") is litigation for purposes of section 552.103(a). Open Records Decision No. 588 (1991). You state that the document at issue was created in preparation of an employee grievance hearing. You have not indicated, however, whether the employee grievance hearing is a contested case under the APA. Furthermore, you have not otherwise established that this hearing should be considered litigation for purposes of section 552.103(a). Therefore, you may not withhold Confidential Enclosure 5 under section 552.103.
You also argue that Confidential Enclosure 5 is excepted from disclosure by section 552.107. Section 552.107(1) excepts information that an attorney cannot disclose because of a duty to his client. In Open Records Decision No. 574 (1990), this office concluded that section 552.107 excepts from public disclosure only "privileged information," that is, information that reflects either confidential communications from the client to the attorney or the attorney's legal advice or opinions; it does not apply to all client information held by a governmental body's attorney. Id. at 5. When communications from an attorney to a client do not reveal the client's communications to the attorney, section 552.107 protects them only to the extent that such communications reveal the attorney's legal opinion or advice. Id. at 3. In addition, basically factual communications from an attorney to a client, or between attorneys representing the client, are not protected. Id. Moreover, section 552.107(1) does not protect from disclosure factual information compiled by a governmental attorney acting in the capacity of an investigator rather than a legal advisor. Open Records Decision No. 462 (1987). After careful review, we conclude that the submitted document does not contain an attorney's legal advice or opinion. Therefore, the district must release Confidential Enclosure 5 to the requestor.
We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied on as a previous determination regarding any other records. If you have any questions regarding this ruling, please contact our office.
June B. Harden
Ref.: ID# 125366
Encl. Submitted documents
cc: Mr. Tom Corbin
1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
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