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February 25, 2000

Mr. Christopher B. Gilbert
Bracewell & Patterson, L.L.P.
South Tower Pennzoil Place
711 Louisiana Street, Suite 2900
Houston, Texas 77002-2781

OR2000-0700

Dear Mr. Gilbert:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 133181.

The Coldspring-Oakhurst Consolidated Independent School District (the "district"), which you represent, received a written request for, among other things, "all Fee Bills for the years 1996, 1997, 1998 and 1999 submitted and/or paid to Wayne Haglund by" the district. You contend that portions of the requested billing statements are excepted from disclosure under sections 552.103 and 552.107 of the Government Code, and by the Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. 1232g.

We note at the outset that section 552.022(a) of the Government Code provides in pertinent part:

Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law:

. . . .

(16) information that is in a bill for attorney's fees and that is not privileged under the attorney-client privilege.

The documents you have submitted to this office as being responsive to the request clearly fall within section 552.022(a)(16). Because section 552.022(a)(16) specifically makes attorney billing statements public, except for information coming within the attorney-client privilege or other information made confidential by law, we will not address your section 552.103 claims. None of the information at issue may be withheld pursuant to section 552.103.

Section 552.107(1) of the Government Code protects information coming within the attorney-client privilege. See Open Records Decision No. 574 (1990). In instances where an attorney represents a governmental entity, the attorney-client privilege protects only an attorney's legal advice and client confidences. Id. In Open Records Decision No. 574, this office concluded that

[i]n general, the attorney's mere documentation of calls made, meetings attended, or memos sent is not protected under [the statutory predecessor to section 552.107(1)], if no notes revealing the attorney's legal advice or the client's confidences are included. Such documentation simply does not embody attorney-client communication.

Open Records Decision No. 574 at 7. See also Open Records Decision No. 589 (1991). We find that some of the information contained in the submitted fee bills is excepted from public disclosure by section 552.107(1) of the Government Code. However, most of the information in the attorney fee bills consists of the types of information discussed above and as such may not be withheld pursuant to section 552.107(1). We have marked the portions of the fee bills that the district may withhold pursuant to the attorney-client privilege.

Finally, you indicate that portions of the billing records must be withheld from the public pursuant to FERPA. 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 numerated federal, state, and local officials and institutions, unless otherwise authorized by the student's parent. See 20 U.S.C. 1232g(b)(1). When a student has attained the age of eighteen years or is attending an institution of postsecondary education, the student holds the rights accorded by Congress to inspect these records. 20 U.S.C. 1232g(d). "Education records" means 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. 20 U.S.C. 1232g(a)(4)(A).

Information must be withheld from required public disclosure under FERPA only to the extent "reasonable and necessary to avoid personally identifying a particular student." Open Records Decision Nos. 332 (1982), 206 (1978). For purposes of FERPA, the billing records at issue constitute "education records" only to the extent that they contain information about identifiable students or their parents. Consequently, the district must withhold the name of each student or his parents contained in the billing statements unless the district receives permission to release the information from the parents of the student or from the student himself if qualified to do so as specified above.

Except as discussed above, the records at issue must be released to the requestor. 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,

William M. Walker
Assistant Attorney General
Open Records Division

WMW/RWP/ljp

Ref: ID# 133181

Encl. Submitted documents

cc: Mr. Edward T. McFarland
Attorney at Law
P.O. Box 119
Lufkin, Texas 75902-0119
(w/o enclosures)


 

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