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July 13, 2000

Ms. Karen L. Johnson
Bracewell & Patterson L.L.P.
500 North Akard Street, Suite 4000
Dallas, Texas 75201-3387

OR2000-2634

Dear Ms. Johnson:

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# 137000.

The Grapevine-Colleyville Independent School District (the "district"), which you represent, received a request for student directory information for the senior class of 2001, including students' names, mailing addresses, and school name. You claim that the requested information is excepted from disclosure under sections 552.026, 552.101, and 552.114 of the Government Code and the federal Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. 1232g.

Section 552.101 of the Government Code excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code 552.101. Section 552.101 encompasses information protected by other statutes. 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); see also 34 C.F.R. 99.3 (defining personally identifiable information). Section 552.026 of the Government Code incorporates FERPA into chapter 552 of the Government Code. See Open Records Decision No. 634 at 6-8 (1995). Section 552.026 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.

Gov't Code 552.026. "Education records" under FERPA are those records that contain information directly related to a student and that are maintained by an educational agency or institution or by a person acting for such agency or institution. See 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." See Open Records Decision Nos. 332 at 3 (1982), 206 at 2 (1978).

Section 552.114(a) of the Government Code requires that the district withhold "information in a student record at an educational institution funded wholly or partly by state revenue." Gov't Code 552.114(a). This office generally has treated "student record" information under section 552.114(a) as the equivalent of "education record" information that is protected by FERPA. See Open Records Decision No. 634 at 5 (1995).

In Open Records Decision No. 634 (1995), this office concluded that: (1) an educational agency or institution may withhold from public disclosure information that is protected by FERPA and excepted from required public disclosure by sections 552.026 and 552.101 of the Government Code without the necessity of requesting an attorney general decision as to those exceptions, and (2) an educational agency or institution that is state-funded may withhold from public disclosure information that is excepted from required public disclosure by section 552.114 of the Government Code as a "student record," insofar as the "student record" is protected by FERPA, without the necessity of requesting an attorney general decision as to that exception. See Open Records Decision No. 634 at 6-8 (1995).

Relying on Open Records Decision No. 634 (1995), you have not submitted the requested information to this office.(1) You generally object to disclosure of the information in question "to the extent that the information requested contains student identifiable information protected from disclosure under [FERPA], as provided by 552.026, 552.101 and 552.114 of the Government Code." More specifically, you argue that FERPA permits but does not require the district to release what the federal law defines as "directory information," and thus makes the disclosure of directory information discretionary and not mandatory. You indicate that the district wishes to prevent what it deems to be inappropriate uses of directory information by releasing such information on a selective basis. Therefore, based on your interpretation of FERPA, you seek to withhold the information in question here from this particular requestor. Alternatively, you contend that compliance with the instant request for information would require the district to disclose the affected students' grade level (i.e., their membership in the prospective graduating class of 2001) and that a student's grade level is not directory information under FERPA. You therefore seek a determination that the requested information is excepted from disclosure under sections 552.026, 552.101, and 552.114 and FERPA.

FERPA defines "directory information" as including the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student. See 20 U.S.C. 1232g(a)(5)(A). The interpretive federal regulation provides that directory information "includes, but is not limited to" these items of information and that the term generally "means information contained in an education record of a student which would not generally be considered harmful or an invasion of privacy if disclosed." See 34 C.F.R. 99.3. In light of section 99.3, we believe that the fact that a particular student is a member of a prospective graduating class constitutes directory information about that student for purposes of FERPA.

FERPA permits an educational agency or institution to release directory information in accordance with federal notice requirements without subjecting itself to the sanction of loss of federal funds. See 20 U.S.C. 1232g(a)(5)(B), (b)(1); Open Records Decision No. 634 at 2 n.2 (1995). Section 1232g(a)(5)(B) provides as follows:

Any educational agency or institution making public directory information shall give public notice of the categories of information which it has designated as such information with respect to each student attending the institution or agency and shall allow a reasonable period of time after such notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without the parent's prior consent.

20 U.S.C. 1232g(a)(5)(B). Chapter 552 of the Government Code requires an educational agency or institution to give notice and an opportunity to object to the release of requested directory information as required by federal law and then to release the directory information if there is no objection. See Open Records Decision Nos. 634 at 2 n.2 (1995), 244 at 2 (1980), 242 at 2 (1980), 96 at 2 (1975). Thus, if the district has given notice and obtained consent, in accordance with section 1232g(a)(5)(B) of the federal law, to the disclosure of the information in question here, then chapter 552 of the Government Code requires the district to release the requested information. See Gov't Code 552.006, 552.221; Open Records Decision No. 664 (2000). In that event, the district must release the requested information without regard to the requestor's motivation or purpose in requesting access to that information. See Gov't Code 552.007, 552.222, 552.223; Open Records Decision Nos. 542 at 4 (1990) (stating that statutory predecessor prohibits inquiry by governmental body into requestor's motives and requires governmental body to treat each request for information uniformly), 463 at 1-2 (1987) (stating that government body cannot make "selective disclosure," so that information that does not fall within a specific exception to disclosure must be released to any person who requests it). Conversely, if the district has not obtained consent to the disclosure of the requested information in accordance with the federal law, then that information is confidential under FERPA and must not be disclosed.

You also seek our opinion concerning a policy that the district is considering relating to parental consent under FERPA to the disclosure of personally identifiable information. You inform us that the district believes that its proposed policy would be in compliance with both FERPA and chapter 552 of the Government Code. In the event of a conflict between FERPA and the Public Information Act, the federal law prevails. See generally Open Records Decision No. 634 (1995). Accordingly, we suggest that you direct your inquiry about the district's prospective consent policy to the Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Ave., S.W., Washington, D.C. 20202-0498, telephone (202) 260-3887.

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,

James W. Morris, III
Assistant Attorney General
Open Records Division

JWM/ljp

Ref: ID# 137000

Encl. Submitted document

cc: Mr. Jay Young
Jay Young Photography
1450 Hughes Road ,Suite 106
Grapevine, Texas 76051
(w/o enclosure)


 

Footnotes

1. In Open Records Decision No. 634 (1995), we cautioned educational agencies and institutions not to submit to this office any education records that might be confidential under FERPA without first either obtaining parental consent to the disclosure of personally identifiable nondirectory information in the records or editing the records to ensure that they contained no personally identifiable nondirectory information. Id. at 11. Subsequent to that decision, the Attorney General was advised that educational agencies and institutions may submit to this office information that is encompassed by FERPA, including personally identifiable nondirectory information, for purposes of obtaining rulings as to whether any of the submitted information must be withheld from disclosure under either federal or state law. See Office of the Attorney General, 2000 Public Information Handbook at 124 n.593, citing Letter from LeRoy S. Rooker, Director, Family Policy Compliance Office, United States Department of Education, to David Anderson, Chief Counsel, Texas Education Agency (April 29, 1998).
 

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