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July 26, 2000

Mr. S. Anthony Safi
Mounce, Green, Myers, Safi & Galatzan
Attorneys and Counselors at Law
P.O. Box 1977
El Paso, Texas 79950-1977

OR2000-2840

Dear Mr. Safi:

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# 137475.

The El Paso Independent School District (the "district"), which you represent, received a request for information pertaining to teachers involved in grade alterations. You seek a ruling as to whether a portion of the requested information is excepted from public disclosure. You inform this office that you intend to withhold personally identifiable information regarding students. You take no position with regard to other responsive information. You advise us that you have provided notice of the request for information to a teacher, pursuant to section 552.305(d) of the Government Code, and that the teacher's representative has objected to the release of information regarding the teacher. You have provided copies of that correspondence. This office has received no correspondence directly from the teacher or from the teacher's representative.(1) We also are in receipt of your letter dated June 8, 2000, in which you advise us of your belief that submission of the requested information to this office is unnecessary. We have considered your other submissions to this office, including the letter to the district from the teacher's representative dated May 16, 2000.

You indicate that the requested information includes "personally identifiable student information" that the district intends to withhold. We understand you to mean information that must be withheld 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 that is made confidential by other statutes. See Open Records Decision No. 658 at 4 (1998). 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). Thus, as a state-funded educational agency or institution, the district may withhold from public disclosure any information that is protected by FERPA and excepted from public disclosure under sections 552.026 and 552.101 of the Government Code and any student record that is excepted from disclosure under section 552.114 of the Government Code, insofar as the student record is excepted under FERPA.(2)

You also seek to withhold other responsive information that you do not claim is protected from disclosure under FERPA and sections 552.026, 552.101, and 552.114. However, the district has not submitted that information, or a representative sample of that information, to this office. Section 552.301 of the Government Code prescribes the procedures that a governmental body must follow when it receives a written request for information and seeks to withhold all or part of that information from the public. Section 552.301 provides in relevant part that "[a] governmental body that requests an attorney general decision . . . must within a reasonable time but not later than the 15th business day after the date of receiving the written request . . . submit to the attorney general . . . a copy of the specific information requested, or submit representative samples of the information if a voluminous amount of information was requested[.]" Gov't Code 552.301(e)(1)(D). Section 552.302 of the Government Code provides as follows:

If a governmental body does not request an attorney general decision as provided by Section 552.301 and provide the requestor with the information required by Section 552.301(d), the information requested in writing is presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information.

Gov't Code 552.302 (emphasis added). In declining to submit to this office information that the district does not believe is protected from disclosure under FERPA and sections 552.026, 552.101, and 552.114 of the Government Code, the district has failed to comply with section 552.301(e)(1)(D) in requesting this letter ruling. Accordingly, the information requested in writing is presumed to be subject to required public disclosure and must be released, unless there is a compelling reason to withhold any of that information from the public. See Gov't Code 552.302; see also Hancock v. State Bd. of Ins., 797 S.W.2d 379, 380-81 (Tex. App.--Austin 1990, no writ); Open Records Decision No. 630 at 3 (1994).

A claim that the requested information is deemed confidential under section 552.101 of the Government Code in conjunction with some other source of law can furnish a compelling reason sufficient to overcome the operation of section 552.302. See Gov't Code 552.101; Open Records Decision Nos. 630 at 3 (1994), 150 (1977). The teacher's representative expresses a strong objection to the release of the information in question. However, neither he nor you have raised any specific exception to the disclosure of that information or made any specific showing as to why it should be withheld from the public. See Gov't Code 552.301(b), (e)(1)(A), 552.305(b), (c). Furthermore, as the district has not submitted the information in question to this office, we have no basis for finding that any of that information is confidential. Therefore, under section 552.302, we have no alternative but to order you to release any responsive information that is not protected by FERPA and sections 552.026, 552.101, and 552.114 of the Government Code. If you believe that the information in question is confidential and may not lawfully be released, then you must challenge this ruling in court as outlined below. We caution the district that chapter 552 of the Government Code prescribes criminal penalties for the release of confidential information. See Gov't Code 552.007(a), 552.101, 552.352.

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# 137906

cc: Mr. Gustavo Reveles
Reporter
El Paso Times
P.O. Box 20
El Paso, Texas 79999

Mr.Greg Goga
TSTA UniServ Representative
El Paso Resource Center
UniServ Region 32/33
7500 Viscount, Suite 130
El Paso, Texas 79925


 

Footnotes

1. Section 552.305 of the Government Code permits a governmental body to decline to release information that may implicate a third party's privacy or property interests in order to seek an attorney general decision as to whether that information is excepted from disclosure. See Gov't Code 552.305(a). Pursuant to section 552.305, the governmental body may provide written notice to an affected third party of a request for information and rely on that party to submit arguments as to why the information should be withheld from disclosure. Id. 552.305(b)-(d). A third party to whom notice is given under section 552.305(d) has ten business days from the date of the party's receipt of the notice to submit to the attorney general that party's reasons, if any, why the requested information should be withheld from the public. Id. 552.305(d)(2).

2. Please note that if an educational agency or institution wishes to seek an attorney general decision and raise exceptions to the disclosure of requested records, and those records contain any information that is protected from disclosure under FERPA and sections 552.026, 552.101, and 552.114, the educational agency or institution may either (1) redact the protected information in compliance with Open Records Decision No. 634 (1995) and submit the redacted records to this office for a ruling on any other exceptions that the educational agency or institution deems to be applicable, or (2) submit the requested records, without redactions, and raise the educational agency or institution's exceptions to disclosure, including FERPA and sections 552.026, 552.101, and 552.114. See also Office of the Attorney General, 2000 Public Information Handbook at 124 n.593.
 

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