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John Cornyn
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February 11, 2000

Ms. Ellen M. House
Cotton, Bledsoe, Tighe & Dawson
P O Box 2776
Midland, Texas 79702-2776

OR2000-0503

Dear Ms. House:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131664.

The Midland Independent School District ("MISD"), which you represent, received two requests from the same requestor for information pertaining to Neil Richmond, principal of Midland High School. You state that some of the requested information has been released to the requestor with the appropriate redactions under the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g ("FERPA") and section 552.117 of the Government Code. You claim that the remaining requested information is excepted from disclosure under sections 552.101, 552.102 and 552.117 of the Government Code and FERPA. We have considered the exceptions you claim and reviewed the submitted information.

You seek to withhold the performance appraisals and written reprimands pertaining to Mr. Richmond pursuant to section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. Section 552.101 requires MISD to withhold, inter alia, information made confidential by statute. Section 21.355 of the Education Code provides that "[a] document evaluating the performance of a teacher or administrator is confidential." This office has interpreted this section to apply to any document that evaluates, as that term is commonly understood, the performance of a teacher or administrator. Open Records Decision No. 643 (1996). Therefore, MISD must withhold the performance appraisals pursuant to section 21.355 of the Education Code. However, the written reprimands may not be withheld under section 21.355 of the Education Code.

You further assert that the written reprimands, and the documentation regarding complaints or grievances filed against Mr. Richmond are excepted from disclosure by section 552.102. Specifically, you argue against the release of information relating to grievances involving sexual harassment.

Section 552.102 excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Gov't Code 552.102(a). In Hubert v. Harte-Hanks Texas Newspapers, 652 S.W.2d 546 (Tex. App-Austin 1983, writ ref'd n.r.e.), the court ruled that the test to be applied to information claimed to be protected under section 552.102 is the same as the test formulated by the Texas Supreme Court for information claimed to be protected under the doctrine of common law privacy as incorporated by section 552.101 of the act. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Thus, information must be withheld from the public when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. Id. at 685; Open Records Decision No. 611 at 1 (1992).

The information at issue pertains solely to an employee's actions while acting as a public servant and the conditions for continued employment, and as such cannot be deemed to be outside the realm of public interest. See Open Records Decision No. 444 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employees). After careful review of the written reprimands and the documentation regarding the complaints and grievances, we find that none pertain to allegations of sexual harassment. Consequently, MISD may not withhold from the requestor the written reprimands and the documentation relating to the complaints and grievances pursuant to common law privacy.

Additionally, you contend that the documentation regarding the complaints and the grievances should be withheld because the school board is not required to deliberate complaints against school district employees in open meeting under sections 551.074 and 551.082 of the Open Meetings Act. The fact that information is discussed in a closed meeting under the Open Meetings Act does not make the information confidential under the Public Information Act. See Open Records Decision No. 485 (1987) (to conclude otherwise, would afford governmental bodies ready means of circumventing intent of act). Therefore, the documentation regarding the complaints and the grievances may not be withheld because the incidents were discussed in a closed meeting.

We note, however, that some of the documents to be released include the home addresses, telephone numbers, and social security numbers of MISD teachers. Section 552.117 of the Government Code excepts from disclosure the home addresses, telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who requests that this information be kept confidential in accordance with section 552.024. 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). MISD must withhold this type of information pursuant to section 552.117 only to the extent that the respective teacher elected to keep this information confidential prior to MISD's receipt of the current records request.

We additionally note that a social security number is excepted from required public disclosure under section 552.101 of the Government Code in conjunction with 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I), if it was obtained or is maintained by a governmental body pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 (1994). It is not apparent to us that the social security numbers contained in the records at issue were obtained or are maintained by MISD pursuant to any provision of law enacted on or after October 1, 1990. You have cited no law, nor are we are aware of any law, enacted on or after October 1, 1990, that authorizes MISD to obtain or maintain a social security number. Therefore, we have no basis for concluding that the social security numbers at issue were obtained or are maintained pursuant to such a statute and are, therefore, confidential under section 405(c)(2)(C)(vii)(I). We caution MISD, however, that section 552.352 of the Government Code imposes criminal penalties for the release of confidential information. Prior to releasing the social security numbers, MISD should ensure that these numbers were not obtained or are maintained by MISD pursuant to any provision of law enacted on or after October 1, 1990.

We also note some documents contain an employee's annuities and federal withholding tax information. Information about employees that reveals personal financial information generally is excepted from public disclosure under the common law privacy test, except to the extent the information reflects a transaction between the employee and the public. Open Records Decision Nos. 600 (1992) (information about public employee's participation in a group insurance program, retirement benefits beneficiaries, tax exempt reimbursement accounts, and direct deposit), 545 (1990) (information about a public employee's participation in a deferred compensation plan). Also, employee W-2 and W-4 forms are excepted from disclosure by title 26, section 6103(a) of the United States Code. Open Records Decision Nos. 600 (1992), 226 (1979). Therefore, MISD must withhold the employee's federal tax return information and the annuities information, if they are paid by the employee rather than MISD. We have marked the documents accordingly.

Finally, you have submitted to this office student records containing redactions of the student-identifying information in accordance with FERPA. You argue that one of the documents is not responsive to the request. We believe this document is responsive. You also argue that this is a student record under FERPA. You argue that FERPA protects the document in its entirety. You claim the document's content may serve to identify the student.(1)

FERPA is incorporated into the Public Information Act by section 552.026 of the Government Code which governs the release of student-identifying information. Section 552.026 of the Government Code provides as follows:

This chapter does not require the release of information contained in education records of an educational agency or institution, except in conformity with the Family Educational Rights and Privacy Act of 1974, Sec. 513, Pub. L. No. 93-380, 20 U.S.C. Sec. 1232g.

FERPA provides that no federal funds will be made available under any applicable program to an educational agency or institution that releases personally identifiable information, other than directory information, contained in a student's education records to anyone but certain enumerated federal, state, and local officials and institutions, unless otherwise authorized by the student's parent. See 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 or by a person acting for such agency or institution. Id. 1232g(a)(4)(A).

However, section 552.026 in conjunction with FERPA may not be used to withhold entire documents; FERPA protects from disclosure information only to the extent "reasonable and necessary to avoid personally identifying a student" or one or both of the student's parents. See id.; Open Records Decision No. 206 (1978). Thus, MISD must withhold from the requestor only information identifying or tending to identify students or their parents. We have marked information that identifies students and parents that MISD must not release to the public in accordance with FERPA.

This letter ruling is limited to the particular records 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 records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Rose-Michel Munguía
Assistant Attorney General
Open Records Division

RMM/jc

Ref: ID# 131664

Encl. Submitted documents

cc: Mr. Jeff Stevens
Midland Reporter Telegram
201 East Illinois Avenue
Midland, Texas 79701
(w/o enclosures)


 

Footnotes

1. A school 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). In this instance, however, as you have submitted the documents at issue for consideration we will address your arguments against disclosure.
 

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