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September 12, 2000

Mr. Joe De Los Santos
Walsh, Anderson, Brown, Schulze & Aldridge, P.C.
P.O. Box 460606
San Antonio, Texas 78246-06066

OR2000-3510

Dear Mr. De Los Santos:

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# 138906.

The Pflugerville Independent School District (the "district"), which your law firm represents, received a request for information relating to certain present or former employees of the district, including the requestor, and various other subjects. You indicate that the district has released portions of the requested information. You claim that the rest of 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 ("FERPA"). We have considered the exceptions you claim and have reviewed the information you submitted.(1)

Initially, we must address the consequences of your concession that the district did not comply with section 552.301 of the Government Code in requesting this ruling. Section 552.301 prescribes the procedures that a governmental body must follow in seeking a ruling by this office as to whether requested information is excepted from disclosure. Section 552.301(b) provides that "[t]he governmental body must ask for the attorney general's decision and state the exceptions that apply . . . not later than the 10th business day after the date of receiving the written request." Gov't Code 552.301(b). Section 552.302 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. You acknowledge that the board failed to request this letter ruling in timely compliance with section 552.301(b).(2) 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. 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). A claim that requested information is 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) (addressing compelling reasons sufficient to overcome non-compliance with section 552.301), 325 (1982) (citing statutory predecessor to section 552.101).

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code 552.101. You claim that requested evaluations of a principal and an assistant principal are confidential under section 552.101 in conjunction with section 21.355 of the Education Code. Section 21.355 provides that "[a]ny document evaluating the performance of a teacher or administrator is confidential." Educ. Code 21.355. This office has interpreted section 21.355 to apply to any document that evaluates, as that term is commonly understood, the performance of a teacher or an administrator. See Open Records Decision No. 643 at 3 (1996). In that decision, we also determined that the word "teacher," for purposes of section 21.355, is a person who is required to and does in fact hold a teaching certificate under subchapter B of chapter 21 of the Education Code or a school district teaching permit under section 21.055 and who is engaged in the process of teaching, as that term is commonly defined, at the time of the evaluation. See ORD 643 at 4. We also concluded that the word "administrator" in section 21.355 means a person who is required to and does in fact hold an administrator's certificate under subchapter B of chapter 21 of the Education Code and is performing the functions of an administrator, as that term is commonly defined, at the time of the evaluation. Id. With one exception, we agree that the requested evaluations are confidential under section 552.101 in conjunction with section 21.355 of the Education Code. We have marked the document that is not an evaluation of a teacher or an administrator under section 21.355. That document, if responsive to the request for information, is not confidential and must be released. See Educ. Code 21.003; ORD 643 at 5.

You also claim that the responsive records contain social security numbers that are confidential under section 552.101. A record of a social security number is confidential under section 552.101 in conjunction with 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I), if that information was obtained or is maintained by a governmental body pursuant to any provision of law enacted on or after October 1, 1990. See Open Records Decision No. 622 at 2-4 (1994). You state that the district obtained or maintains the social security numbers in question under a rule of the Texas Workers Compensation Commission and an uncodified act of the Seventy-sixth Legislature.(3) We have reviewed those laws and note that both were enacted after October 1, 1990. We are not persuaded, however, that either of those laws requires or permits the district to maintain a record of an employee's social security number. See ORD 622 at 4. Thus, under the laws you cite, we have no basis for concluding that the social security numbers in question are confidential under section 552.101 in conjunction with section 405(c)(2)(C)(viii)(I) of the federal law. Nevertheless, we caution you that section 552.352 of the Government Code imposes criminal penalties for the release of confidential information. Therefore, prior to releasing a social security number, the district should ensure that it was not obtained and is not maintained pursuant to any other provision of law that was enacted on or after October 1, 1990.

Section 552.117 of the Government Code also may require the district to withhold an employee's social security number. Section 552.117 excepts from disclosure the home address, home telephone number, or social security number of a present or former employee of a governmental body, or information that reveals whether such a present or former employee has family members, if the employee has elected to not allow public access to this information in accordance with section 552.024 of the Government Code. See Gov't Code 552.024(a), .117(1); see also Open Records Decision Nos. 622 (1994), 530 (1989), 455 (1987).

Returning to your claims under section 552.101, we address your contention that a small portion of the submitted information is governed by the Medical Practice Act (the "MPA"). The MPA, as codified at subtitle B of title 3 of the Occupations Code, governs the disclosure of medical records. Section 159.002 of the Occupations Code provides in relevant part:

(b) A record of the identity, diagnosis, evaluation, or treatment of a patient by a physician that is created or maintained by a physician is confidential and privileged and may not be disclosed except as provided by this chapter.

(c) A person who receives information from a confidential communication or record as described by this chapter . . . may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.

Occ. Code 159.002(b), (c). The MPA includes provisions that govern the disclosure of information that it encompasses. See Occ. Code 159.003, .004, .005, .006. In construing the predecessor statute, this office held that in governing access to a specific subset of information, the MPA prevails over the more general provisions of the Public Information Act.(4) We agree that the MPA governs the information that you have identified. The district may release that information only in accordance with the Medical Practice Act.

The district also seeks to withhold Employment Eligibility Verification (Form I-9) forms under section 552.101 in conjunction with federal law. Section 1324a of title 8 of the United States Code provides that a Form I-9 "may not be used for purposes other than for enforcement of this chapter" and for enforcement of other federal statutes governing crime and criminal investigations. See 8 U.S.C. 1324a(b)(5); see also 8 C.F.R. 274a.2(b)(4). As release of the submitted Form I-9's under chapter 552 of the Government Code would be "for purposes other than for enforcement" of the referenced federal statutes, the Form I-9's are excepted from disclosure under section 552.101 in conjunction with section 1324a of title 8 of the United States Code. They may be released only for purposes of compliance with the federal laws and regulations governing the employment verification system.

The district also claims that responsive W-4 forms are confidential under section 552.101 in conjunction with section 6103 of title 26 of the United States Code. Section 6103(a) of the Internal Revenue Code makes federal tax return information confidential. The term "return information" includes "the nature, source, or amount of income" of a taxpayer. See 26 U.S.C. 6103(b)(2). Federal courts have construed the term "return information" expansively to include any information gathered by the Internal Revenue Service regarding a taxpayer's liability under title 26 of the United States Code. See Mallas v. Kolak, 721 F. Supp 748, 754 (M.D.N.C. 1989), dismissed in part, aff'd in part, vacated in part, and remanded, 993 F.2d 1111 (4th Cir. 1993). The district must withhold the submitted W-4 forms under section 552.101 in conjunction with section 6103(a) of the Internal Revenue Code.

You also assert that the district must withhold information that identifies students under sections 552.026, 552.101, and 552.114 of the Government Code and 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 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). The district must withhold information 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 of the Government Code requires the district to 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). We generally agree that the information that you have encircled must be withheld under sections 552.026, 552.101, and 552.114 and FERPA. We have marked a few additional items of information that the district also must withhold, including a student's hand-written document that must be withheld in its entirety. See Open Records Decision No. 224 (1979).

Finally, the district contends that information contained in responsive college transcripts is excepted from disclosure under section 552.102(b) of the Government Code. Section 552.102(b) protects from public disclosure

a transcript from an institution of higher education maintained in the personnel file of a professional public school employee, except that this section does not exempt from disclosure the degree obtained or the curriculum on a transcript in the personnel file of the employee.

Gov't Code 552.102(b). In Open Records Decision No. 526 (1989), this office held that

governmental bodies must edit from professional public school employees' [college] transcripts information other than the employee's name, the degree obtained, and the courses taken. For example, grades must be deleted as well as any extraneous information, such as religious preference, appearing on the transcripts.

Id. at 2-3. We agree that section 552.102(b) requires the district to withhold those portions of the transcripts that you have designated. See also Houston Indep. Sch. Dist. v. Houston Chronicle Publ'g Co., 798 S.W.2d 580, 589-90 (Tex. App.--Houston [1st Dist.] 1990, writ denied).

In summary, the district must be release the requested information, with the following exceptions. Evaluations of public school administrators are confidential and must be withheld from disclosure under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. Social security numbers may be confidential under section 552.101 in conjunction with federal law; and employees' home addresses and telephone numbers, social security numbers, and family member information may be excepted from disclosure under sections 552.024 and 552.117. The Medical Practice Act governs disclosure of the submitted medical information. Employee Eligibility Verification (I-9) and W-4 forms are confidential and must be withheld under section 552.101 in conjunction with federal law. The district also must withhold education and student records that are confidential under sections 552.026, 552.101, and 552.114 in conjunction with FERPA. Portions of the college transcripts must be withheld under section 552.102(b).

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).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

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# 138906

Encl. Submitted documents

cc: Ms. Ruth Hesskew
401 City Park Road
Pflugerville, Texas 78660
(w/o enclosures)


 

Footnotes

1. Your request for this ruling does not address the status of all of the information to which the requestor seeks access. We assume that the district has released to the requestor all responsive information that it does not seek to withhold. If not, then the district must release that information immediately. See Gov't Code 552.006, 552.301(a); see also id. 552.221; Open Records Decision No. 664 (2000).

2. You inform us that the district received the request for information on May 22, 2000. Our records reflect that you submitted your request for this ruling on July 7, 2000. Therefore, the district also failed to comply timely with subsections (d) and (e) of section 552.301. See Gov't Code 552.301(d), (e).

3. See 28 T.A.C. 102.8(a)(1) (providing that all written communications to Texas Workers' Compensation Commission must contain injured worker's social security number); Act of May 17, 1999, 76th Leg., R.S., ch. 314, 1, 1999 Tex. Gen. Laws 1218, 1218-19 (providing that "[t]he social security number of an applicant for or holder of a license, certificate of registration, or other legal authorization issued by a licensing agency to practice in a specific occupation or profession that is provided to the licensing agency is confidential and is not subject to disclosure under the open records law") (noted at Occ. Code 51.251).

4. See Open Records Decision No. 598 (1991). The Seventy-sixth Legislature repealed the predecessor statute, article 4495b of Vernon's Texas Civil Statutes, in enacting the Occupations Code. As the enacting legislation was a non-substantive codification, interpretations of the predecessor statute retain their relevance. See Act of May 13, 1999, 76th Leg., R.S., ch. 388, 6, 7, 1999 Tex. Gen. Laws 1431, 2439-40.
 

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