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June 13, 2000

Mr. Tom Garner, Jr.
Garner, Roberts & Roberts, L.L.P.
Attorneys at Law
P.O. Box 9
Port Lavaca, Texas 77979

OR2000-2300

Dear Mr. Garner:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136499.

The Victoria Independent School District (the "district"), which you represent, received a request for the findings and recommendations of the district's internal investigation into the TAAS test administration at O'Connor Elementary School and all correspondence to and from the Texas Education Agency. You state that you have provided the requestor with some of the requested documents.(1) You claim that portions of the requested information are excepted from disclosure under section 552.131 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

You claim that section 552.131 excepts the highlighted portions of Exhibit 4 from disclosure. Section 552.131 of the Government Code, as enacted by House Bill 211, provides in pertinent part:

(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 No. 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 section 552.131, 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 Exhibit 4 represents a report of an investigation of possible violations of criminal, civil or regulatory law reported to the district by various informants. Further, you assert that violations of laws and regulations for administering TAAS tests are subject to possible civil penalties and governed by civil and regulatory law. However, you have not set forth the precise law or regulation alleged to have been violated with respect to any of the information you have marked for redaction. Moreover, the information on its face does not reveal the law or regulation alleged to have been violated. Thus, we conclude that you have not demonstrated the applicability of section 552.131 to the submitted information. Therefore, you may not withhold the highlighted information in Exhibit 4 under section 552.131. Accordingly, you must release the submitted information.(2)

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,

Jennifer H. Bialek
Assistant Attorney General
Open Records Division

JHB/nc

Ref: ID# 136499

Encl. Submitted documents

cc: Mr. Jim Cole
Attorney at Law
P.O. Drawer 510
Victoria, Texas 77902
(w/o enclosures)


 

Footnotes

1. You have provided this office Exhibits 2-1, 2-2, 2-3, 2-4, 3-1, and 3-2 which you have provided to the requestor with FERPA information redacted. See Open Records Decision No. 634 (1995). Therefore, this decision addresses only Exhibit 4.

2. We note that you must withhold the student information you have marked under FERPA.
 

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