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June 26, 2000

Ms. Betsy Hall Bender
Attorney at Law
P.O. Box 26715
Austin, Texas 78755-0715

OR2000-2409

Dear Ms. Bender:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 136740.

The Palestine Independent School District (the "district"), which you represent, received a request for certain school records pertaining to the requestor's child. You state that the district has released to the requestor all school attendance records. You contend, however, that an Application for Free and Reduced Price Meals (the "application") is confidential for purposes of section 552.101 of the Government Code in conjunction with the Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. 1232g, and federal regulations promulgated thereunder. It is your contention that the district is prohibited from releasing the application to the requestor, the child's non-custodial parent.

Section 552.101 of the Government Code protects "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." 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 [FERPA].

"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). Our review of the application indicates that the application is an "education record" for purposes of section 1232g(a)(4)(A). We conclude, therefore, that the application is subject to the provisions of FERPA.

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). FERPA also provides to parents an affirmative right of access to their child's education records:

No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children. . . . Each educational agency or institution shall establish appropriate procedures for the granting of a request by parents for access to the education records of their children within a reasonable period of time, but in no case more than forty-five days after the request has been made.

20 U.S.C. 1232g(a)(1)(A). FERPA makes no distinction between the rights of access by custodial and non-custodial parents. Furthermore, although you assert that "34 C.F.R. Part 99 exempts disclosure of free and reduced price school meal applications to non-custodial parents," our review of those federal regulations revealed no such provision. Nor have you provided this office with any other legal authority in support of such a proposition.(1) Finally, this office has consulted with the Family Policy and Regulations Office of the federal Department of Education, which informed a member of our staff that it also was unaware of any such prohibition. We conclude, therefore, that the requestor has a special right of access to the application pursuant to section 1232g(a)(1)(A) and that the district must release the application to the requestor without further delay.(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,

Carla Gay Dickson
Assistant Attorney General
Open Records Division

CGD/RWP/ljp

Ref: ID# 136740

Encl. Submitted document

cc: Mr. W. S. Reierson
Route 7, Box 7210
Palestine, Texas 75801
(w/o enclosure)


 

Footnotes

1. Although you have submitted for our review a copy of a policy statement from the United States Department of Agriculture stating that non-custodial parents do not have a right of access to applications for free and reduced meals, that statement provides no legal citation supporting the statement.

2. The Department of Education additionally informed this office that if the requestor wishes to file a complaint against the district in regard to this matter, he may do so by contacting the department at (202) 260-3887, or by sending the department pertinent information at 400 Maryland Avenue, S.W., Washington, D.C. 20202.
 

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