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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 11, 2002

Ms. Lydia L. Perry
Law Offices of Robert E. Luna, P.C.
4411 North Central Expressway
Dallas, Texas 75205

OR2002-7029

Dear Ms. Perry:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173473.

The DeSoto Independent School District (the "district"), which you represent, received two requests for information regarding three named educators and three named administrators. The requestor subsequently clarified his request to include all personnel records of the named employees, including written reprimands and grievances. You state that some responsive information has been released to the requestor. You claim that a portion of the requested information is excepted from disclosure under sections 552.024, 552.101, 552.102, 552.114, and 552.117 of the Government Code and under the Family Educational Rights and Privacy Act of 1974 ("FERPA").(1) We have considered the exceptions you claim and reviewed the submitted information.

You explain that the requestor made two requests, one received on September 18, 2002, and the other on September 19, 2002. On September 19, 2002, the district asked the requestor to clarify his requests. See Gov't Code 552.222 (providing that a governmental body may ask the requestor to clarify the request if what information is requested is unclear to the governmental body). Thus, the ten day time period to request a decision under section 552.301(b) was tolled on September 19, 2002. See Gov't Code 552.301(b); Open Records Decision No. 663 at 5 (1999) (providing that ten-day period is tolled during the clarification process). The district received the requestor's clarification on September 25, 2002; consequently, the ten-business-day period resumed on September 26. You indicate that the district was officially closed on September 30, 2002, for a State Fair holiday. Thus, the ten-business-day period resumed again on October 1, 2002. You submitted your request for a decision from this office on October 2, 2002; accordingly, we conclude that you timely requested a decision from this office pursuant to section 552.301 of the Government Code.

You assert that a portion of the submitted information contains personally identifiable student information that is excepted from public disclosure under FERPA and section 552.114 of the Government Code. 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). "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. Id. 1232g(a)(4)(A). This office generally applies the same analysis under section 552.114 and FERPA. Open Records Decision No. 539 (1990).

Section 552.114 excepts from disclosure student records at an educational institution funded completely or in part by state revenue. 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.

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 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 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. In this instance, the district has submitted information to this office that it believes to be subject to FERPA. Therefore, we will address the applicability of FERPA to that information.

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 (1982), 206 (1978). We agree that to the extent the information that you have highlighted may reveal or tends to reveal information about a student, you must withhold it pursuant to FERPA unless the district has authority to release it under the federal law.

You claim that the submitted records in Exhibit D consist of evaluation information that is excepted from public disclosure under section 552.101 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Section 21.355 of the Education Code provides, "A document evaluating the performance of a teacher or administrator is confidential." This office interpreted this section to apply to any document that evaluates, as that term is commonly understood, the performance of a teacher or administrator. Open Records Decision No. 643 (1996). In that opinion, this office also concluded that a teacher is someone who is required to hold and does hold a certificate or permit required under chapter 21 of the Education Code and is teaching at the time of his or her evaluation. Id. Similarly, an administrator is someone who is required to hold and does hold a certificate required under chapter 21 of the Education Code and is administering at the time of his or her evaluation. Id. Based on the reasoning set out in Open Records Decision No. 643, we conclude that the documents submitted to this office in Exhibit D are confidential under section 21.355 of the Education Code. Therefore, pursuant to section 552.101 of the Government Code, the district must withhold these documents.

You also claim that the employees' college transcripts in Exhibit C are excepted from disclosure pursuant to section 552.102(b) of the Government Code. Section 552.102(b) states:

Information is excepted from the requirements of section 552.021 if it is 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). Based on our review of your arguments and the transcripts in Exhibit C, we conclude that the district must withhold all portions of those transcripts from disclosure pursuant to section 552.102(b) of the Government Code, except for information concerning each employee's curriculum and degree obtained. The curriculum and degree obtained must be released to the requestor.

Finally, you assert that a portion of the submitted information is excepted from public disclosure under section 552.117 of the Government Code. Section 552.117 excepts from disclosure the home addresses and telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who request that this information be kept confidential under section 552.024. Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Therefore, the district may only withhold information under section 552.117 on behalf of current or former officials or employees who made a request for confidentiality under section 552.024 prior to the date on which the requests for this information were made. For those employees who timely elected to keep their personal information confidential, the district must withhold the employees' home addresses and telephone numbers, social security numbers, and any information that reveals whether these employees have family members. The district may not withhold this information under section 552.117 for those employees who did not make a timely election to keep the information confidential.

For those employees who failed to make a timely election under section 552.024, social security numbers may be confidential pursuant to federal law. A social security number or "related record" may be excepted from disclosure under section 552.101 of the Government Code in conjunction with the 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I). See Open Records Decision No. 622 (1994). These amendments make confidential social security numbers and related records that are obtained and maintained by a state agency or political subdivision of the state pursuant to any provision of law enacted on or after October 1, 1990. See id. You have cited no law, nor are we are aware of any law, enacted on or after October 1, 1990, that authorizes the district to obtain or maintain these social security numbers. Therefore, we have no basis for concluding that the social security numbers at issue are confidential pursuant to section 405(c)(2)(C)(viii)(I) of Title 42 of the United States Code. We caution the district, however, that section 552.352 of the Government Code imposes criminal penalties for the release of confidential information. Prior to releasing the social security numbers at issue, you should ensure that the numbers were not obtained or are not maintained by the district pursuant to any provision of law enacted on or after October 1, 1990.

We note that the submitted information contains the e-mail address of a member of the public. Section 552.137 makes certain e-mail addresses confidential.(2) Section 552.137 provides:

(a) An e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under this chapter.

(b) Confidential information described by this section that relates to a member of the public may be disclosed if the member of the public affirmatively consents to its release.

Gov't Code 552.137. You do not inform us that a member of the public has affirmatively consented to the release of any e-mail address contained in the submitted materials. The district must, therefore, withhold the e-mail address that we have marked under section 552.137.

In summary, we have marked the types of information that may reveal or tend to reveal information about a student that must be withheld pursuant to FERPA. The documents submitted in Exhibit D are confidential under section 21.355 of the Education Code, and must be withheld under section 552.101 of the Government Code. The transcripts in Exhibit C must be withheld from disclosure pursuant to section 552.102(b) of the Government Code, except for information concerning each employee's curriculum and degree obtained. For those employees who timely elected to keep their personal information confidential, the district must withhold the employees' home addresses and telephone numbers, social security numbers, and any information that reveals whether these employees have family members under section 552.117. Social security numbers may be confidential under federal law. The district must withhold the e-mail address that we have marked under section 552.137. The remaining submitted information must be released to the requestor.

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 Hadassah Schloss at the Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code 552.325. 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,

Cindy Nettles
Assistant Attorney General
Open Records Division
CN/jh
Ref: ID# 173473
Enc. Submitted documents

c: Mr. Michael A. McKinney, Sr.
1317 Sparrow Court
DeSoto, Texas 75115
(w/o enclosures)


 

Footnotes

1. Although you claim that portions of the submitted information are excepted from disclosure pursuant to section 552.024, we note that section 552.117 of the Government Code is the applicable exception to disclosure to claim for this type of information. Accordingly, we address your claim regarding section 552.024 under section 552.117(1) of the Government Code.

2. The language of section 552.136, as added by House Bill 2589, is identical to that of section 552.137.
 

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