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February 29, 2000

Ms. Lynn Rossi Scott
Bracewell & Patterson, L.L.P.
500 North Akard Street, Suite 4000
Dallas, Texas 75201-3387

OR2000-0763

Dear Ms. Scott:

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# 132534.

The Hurst-Euless-Bedford Independent School District (the "school district"), which you represent, received a request for eleven categories of information concerning two former district employees. You state that the school district objects to the required public disclosure of seven of the requested categories of information.(1) You state that the school district will release to the requestor the other requested items of information. You claim that portions of the information found in the remaining seven categories of requested documents are excepted from disclosure under sections 552.026, 552.101, 552.102, 552.107, 552.114, and 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by the common law right to privacy and excepts from disclosure private facts about an individual. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Therefore, information may 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).

In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court addressed the applicability of the common law privacy doctrine to files of an investigation of allegations of sexual harassment. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the public's interest was sufficiently served by the disclosure of such documents. Id. In concluding, the Ellen court held that "the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id.

Section 552.102(a) protects:

information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, except that all information in the personnel file of an employee of a governmental body is to be made available to that employee or the employee's designated representative as public information is made available under this chapter.

Section 552.102(a) is designed to protect public employees' personal privacy. The scope of section 552.102(a) protection, however, is very narrow. See Open Records Decision No. 336 (1982). See also Attorney General Opinion JM-36 (1983). The test for section 552.102(a) protection is the same as that for information protected by common law privacy under section 552.101: the information must contain highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and the information must be of no legitimate concern to the public. Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 550 (Tex. App.--Austin 1983, writ ref'd n.r.e.).

You claim that portions of the documents in Exhibits B and C contain highly intimate and embarrassing details, the disclosure of which would serve no legitimate public purpose. We have reviewed the documents at issue. We conclude that the school district must withhold from disclosure the information that identifies the victims and witnesses of the alleged sexual harassment. Id. We have marked the information in Exhibits B and C that is protected under sections 552.101 and 552.102.

Next, you claim that the growth plans and yearly written evaluations of the two former school district employees are confidential under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Section 21.355 provides that, "[a]ny 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). In that opinion, this office also concluded that a "teacher" is someone who is required to hold and does hold a certificate or permit required under chapter 21 of the Education Code and is teaching at the time of his or her evaluation. Id. We agree that, as defined in section 21.201(1) of the Education Code, the term "teacher" could encompass a head football coach or an aquatics director. Based on the reasoning set out in Open Records Decision No. 643 (1996), we conclude that the growth plans and written evaluations found in Exhibits D and E are confidential under section 21.355 of the Education Code. Therefore, pursuant to section 552.101 of the Government Code, the school district must withhold Exhibits D and E.

Section 552.107(1) protects information "that the attorney general or an attorney of a political subdivision is prohibited from disclosing because of a duty to the client under the Texas Rules of Civil Evidence, the Texas Rules of Criminal Evidence, or the Texas Disciplinary Rules of Professional Conduct." This exception incorporates the attorney-client privilege. See Open Records Decision No. 574 (1990). If a government body engages a private attorney to perform legal services, information in the attorney's possession relating to the legal services is subject to the Act. See Open Records Decision Nos. 663 at 7-8 (1999), 499 at 5 (1988), 462 at 7 (1987). In instances where an attorney represents a governmental entity, the attorney-client privilege protects only an attorney's legal advice and confidential attorney-client communications. See Open Records Decision No. 574 (1990). Accordingly, these two classes of information are the only information contained in the records at issue that may be withheld pursuant to the attorney-client privilege. Having reviewed the communications between the parties' attorneys which you submitted as Exhibit G, we conclude that the submitted documents do not fall within the above two classes of information protected by the attorney-client privilege. As the majority of the documents were created by or sent to a third party, Exhibit G does not contain confidential communications subject to the attorney-client privilege. See Open Records Decision No. 658 at 7 (1998). Further, section 552.107(1) does not protect basically factual communications from the attorney to the client or among attorneys for the same client, such as a summary of a meeting containing no legal advice or opinion or client confidences. See Open Records Decision No. 574 at 5 (1990). Therefore, the documents contained in Exhibit G must be disclosed but with the redaction of certain identifying information. These documents may only be released after the names and identifying information of the

students and parents have been redacted pursuant to the Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. 1232g, and section 552.101 of the Government Code.

You have redacted information that identifies school district students and parents of school district students. Such information is excepted from disclosure under the federal Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. 1232g, or sections 552.026 and 552.114 of the Government Code. See Open Records Decision No. 634 (1995). Under FERPA, a student's education records must be withheld from required public disclosure only to the extent "reasonable and necessary to avoid personally identifying a particular student." Open Records Decision Nos. 332 (1982), 206 (1978). We agree that the school district must not release any parent or student-identifying information in the requested records.

Included among the submitted documents are letters that appear to be handwritten by a student. For purposes of FERPA, the handwritten letters at issue constitute "education records" in that they contain information about identifiable students. See Open Records Decision No. 224 (1979) (student's handwritten comments that would make identity of student easily traceable through handwriting, style of expression, or particular incidents related in comments protected under FERPA). Thus, the handwritten letters must be withheld pursuant to sections 552.026 and 552.114 of the Government Code. See also Open Records Decision No. 634 (1995) (educational agency or institution may withhold personally identifiable nondirectory information without necessity of requesting attorney general decision). We have marked the documents accordingly.

Section 552.131 of the Government Code, as enacted by House Bill 211, provides in pertinent part as follows:

(a) "Informer" means a student or former student or an employee or former employee of a school district who has furnished a report of another person's or persons' possible violation of criminal, civil, or regulatory law to the school district or the proper regulatory enforcement authority.

(b) An informer's name or information that would substantially reveal the identity of an informer is excepted from [required public disclosure].

(c) Subsection (b) does not apply:

(1) if the informer is a student or former student, and the student or former student, or the legal guardian, or spouse of the student or former student consents to disclosure of the student's or former student's name; or

(2) if the informer is an employee or former employee who consents to disclosure of the employee's or former employee's name; or

(3) if the informer planned, initiated, or participated in the possible violation.

Because the Legislature limited the protection of section 552.131 to persons who report possible violations of "law", we do not believe that the mere report of a violation of a school district policy or procedure is sufficient to invoke the protection of section 552.131. Thus, this exception does not apply to an individual who merely alleges the commission of behavior that does not constitute a violation of criminal, civil or regulatory law. Cf. Open Records Decision 515 (1989). Nor would this exception protect the identity of an individual who merely provides information to the school district during an investigation, but whose statement does not contain an allegation of a violation of law. Consequently, as part of its burden of demonstrating the applicability of the section 552.131 exception, a school district must clearly identify to this office the precise law or regulation alleged to have been violated in the individual's statement. See Gov't Code 552.301(e)(1).

You explain that the responsive information found in Exhibits B and C contains either the name, title, address, phone number or other identifying information of individuals who fall within the protection of the section 552.131. You also state that these individuals wish to remain anonymous and that the school district has no knowledge of any of these individuals planning, initiating, or participating in the possible violations that they have reported. However, you have not set forth the precise law or regulation alleged to have been violated in these individuals' statements. Nor are we able to identify from the face of the documents what specific violations of law have allegedly been reported. Therefore, we conclude that you have not established the applicability of section 552.131 to the documents in Exhibits B and C.(2)

You contend the requestor has, in one instance, made a request that "is so vague and overbroad that it cannot be fulfilled."(3) You argue that the school district need not comply with this specific request. It is well-established that a governmental body may not disregard a request for records made pursuant to the Public Information Act merely because a requestor does not specify the exact documents desired. A governmental body must make a good faith effort to relate a request to information held by it. Open Records Decision No. 561 at 8-9 (1990), 87 (1975). Section 552.222(b) of the Government Code, however, provides that if a governmental body is unable to determine the nature of the records being sought, it may ask the requestor to clarify the request so that the desired records may be identified.

However, section 552.222(b) does not stand for the proposition that a request may be denied merely because it seeks a broad range of documents. The purpose of this section is to authorize a dialogue between the governmental body and the requestor regarding the scope of the records request.(4) Open Records Decision No. 663 (1999). When a requestor makes a vague or broad request, the governmental body should make a good faith effort to advise the requestor of the type of documents available so that the requestor may narrow or clarify the request. See id. at 5. You state that you have attempted to contact the requestor for the purpose of narrowing the request but have not reached an agreement or clarification.

We have reviewed the open records requests submitted to the school district. The request at issue specifies the physical or other form of the information, the author of the information, and the subject matter of the information. The request, while encompassing a potentially voluminous amount of material, is sufficiently clear and understandable to inform the school district of the records being requested, as is evidenced by your ability to identify records responsive to the request.

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,

Amanda Crawford
Assistant Attorney General
Open Records Division

AEC/nc

Ref: ID# 132534

Encl. Submitted documents

cc: Ms. Paula Caballero
Staff Writer
Fort Worth Star-Telegram
3201 Airport Freeway, Suite 108
Bedford, Texas 76021
(w/o enclosures)


 

Footnotes

1. Your original opinion request objects to eight of the eleven categories of requested information. In a subsequent letter dated January 7, 2000, you state that the requestor has agreed to narrow her request for attorneys' fee billing statements to the master billing summaries for the specified files for each billing period. You have submitted to this office a copy of this agreement signed by the requestor. Therefore, we understand that the school district has withdrawn its request for a decision regarding the applicability of the exceptions found in sections 552.101, 552.103 and 552.107 of the Government Code to the attorneys' fee billing statements.

2. In your brief, you claim that this office, in Open Records Letter No. 99-2729 (1999), "issued an opinion upholding the District's objections to disclosing the names and other identifying information of the informers in this District's investigation into the allegations against Ed Hickman." Please note that the school district objections were upheld by this office under section 552.101 of the Government Code, not section 552.131.

3. Specifically, you assert that the request for "Any correspondence from former Trinity High School principal Bill Shatford regarding Ed Hickman, including memos and letters" is "vague, overly broad, and ambiguous."

4. Section 552.222(b) also limits the nature of the inquiries by the governmental body to those regarding the requested documents themselves. This section prohibits the governmental body from inquiring into the purpose for which the requestor seeks the records.
 

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