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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 13, 2002

Ms. Pamela Smith
Assistant General Counsel
Texas Department of Public Safety
P.O. Box 4087
Austin, Texas 78773-0001

OR2002-7144

Dear Ms. Smith:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173624.

The Department of Public Safety (the "department") received a request for information relating to a named former trooper of the department. You state that the department will make available to the requestor most of the information. However, you claim that portions of the requested information are excepted from disclosure under section 552.1175 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Initially, we note that the submitted documents contain information that may fall within the purview of sections 552.026 and 552.114 of the Government Code and the federal Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. 1232g. This office generally applies the same analysis under section 552.114 and FERPA. Open Records Decision No. 539 (1990). 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). A "student" is defined to include "any person with respect to whom an educational agency or institution maintains education records or personally identifiable information, but does not include a person who has not been in attendance at such agency or institution. Id. 1232g(a)(6); see also 34 C.F.R. 99.3. 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 the Family Educational Rights and Privacy Act of 1974, Sec. 513, Pub. L. No. 93-380, 20 U.S.C. Sec. 1232g.

Thus, FERPA and the accompanying Government Code provisions govern the availability of student or education records held by educational agencies or institutions. See 20 U.S.C. 1232g(b)(1); Gov't Code 552.026, 552.114. FERPA generally does not govern access to records in the custody of governmental bodies that are not educational agencies or institutions. See Open Records Decision No. 390 at 3 (1983). An exception to this rule applies if the governmental body received the records from an educational agency pursuant to the written consent of the student. 20 U.S.C. 1232g(b)(4)(B).

The information at issue appears to be a transcript from McAllen Memorial High School (the "high school"). Consequently, we believe the information at issue is an education record under FERPA while it is maintained by the high school. Thus, if the department received the information at issue under the written consent of the student, the department must withhold this information must be withheld from the requestor under FERPA. See id. 1232g(a)(3), (b)(4)(B). We have marked the applicable information.

Section 552.1175 provides in pertinent part:

(a) This section applies only to:

. . .

(2) peace officers as defined by Article 2.12, Code of Criminal Procedure;

. . .

(b) Information that relates to the home address, home telephone number, or social security number of an individual to whom this section applies, or that reveals whether the individual has family members is confidential and may not be disclosed to the public under this chapter if the individual to whom the information relates:

(1) chooses to restrict public access to the information; and

(2) notifies the governmental body of the individual's choice on a form provided by the governmental body, accompanied by evidence of the individual's status.

(c) A choice made under Subsection (b) remains valid until rescinded in writing by the individual.

Gov't Code 552.1175(a), (b), (c).

Therefore, if the former trooper elected not to allow access to this information in accordance with the procedures under section 552.1175 of the Government Code at a time when he was a peace officer, we believe the department must withhold this information from required public disclosure pursuant to section 552.1175. If the former trooper did not make such an election, the submitted information may not be withheld under section 552.1175; however, this information may nevertheless be confidential under section 552.117(1) or section 552.117(2).

We next address the applicability of section 552.117(2) to the submitted information. This section excepts from disclosure a peace officer's home address, home telephone number, social security number, and information indicating whether the peace officer has family members, regardless of whether the peace officer made an election under section 552.024 of the Government Code. Section 552.117(2) applies to peace officers as defined by article 2.12 of the Code of Criminal Procedure. We note that the individual whose information appears in the responsive material is not employed by the department. Furthermore, we are uncertain whether this individual is still a peace officer. If this individual remains a licensed peace officers as defined by article 2.12 of the Code of Criminal Procedure, then the information that we have marked must not be released by the department pursuant to section 552.117(2) of the Government Code. However, if this individual is no longer a licensed peace officer, then information relating to him may still be excepted from disclosure under section 552.117(1). Accordingly, we now address whether section 552.117(1) of the Government Code excepts from disclosure any of this type of information regarding this individual.

Section 552.117(1) 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 of the Government Code. See Gov't Code 552.117(1). However, information that is responsive to a request may not be withheld from disclosure under section 552.117(1) if the employee did not request confidentiality in accordance with section 552.024 or if the request for confidentiality under section 552.024 was not made until after the request for information at issue was received by the governmental body. Whether a particular piece of information is public must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). Accordingly, we conclude that the department must withhold from disclosure the information regarding the former trooper pursuant to section 552.117(1), if he made a request for confidentiality under section 552.024 of the Government Code for this information prior to the date on which the present request was received by the department, regardless of the fact that he may not currently be a peace officer. Otherwise, the department may not withhold any of the submitted information based on section 552.117(1).

We note, however, that if the former trooper did not timely elect to withhold his social security number as prescribed by section 552.024 or section 552.1175, or if the former trooper is no longer a peace officer, the social security number may nevertheless be confidential under federal law. A social security number may be withheld in some circumstances under section 552.101 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. We have no basis for concluding that the social security numbers in the submitted information are confidential under section 405(c)(2)(C)(viii)(I), and therefore excepted from public disclosure under section 552.101 of the Public Information Act (the "Act") on the basis of that federal provision. We caution, however, that section 552.352 of the Act imposes criminal penalties for the release of confidential information. Prior to releasing any social security number information, you should ensure that no such information was obtained or is maintained by the department pursuant to any provision of law enacted on or after October 1, 1990.(1)

Finally, we note that the submitted information contains an e-mail address that is excepted from disclosure under section 552.137 of the Government Code. Section 552.137 provides that "[a]n 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 [the Act]." See Gov't Code 552.137(a). As there is no indication that the individual to whom the e-mail address belongs has consented to its release, the department must withhold the e-mail address in that we have marked under section 552.137 of the Government Code. See Gov't Code 552.137(b) (confidential information described by this section that relates to member of public may be disclosed if member of public affirmatively consents to its release).

In summary, we have marked the information that must be withheld under section 552.114 of the Government Code and FERPA if the department received the information pursuant to the individual's written consent. The department must withhold the information we have marked under section 552.1175 provided that the former trooper made an election to keep this information confidential in accordance with the procedures under section 552.1175(b)(1). If no such election was made under section 552.1175, the department must withhold the information we have marked based on section 552.117(1), provided that the former trooper made a timely election under section 552.024, or under section 552.117(2), if the individual is currently employed as a peace officer. If the former trooper made no election under section 552.024 or 552.1175, and if the former trooper is no longer a peace officer, social security numbers in the submitted information may be confidential under the federal Social Security Act if those numbers were obtained or are maintained pursuant to any provision of law enacted after October 1, 1990. Finally, an e-mail address in the submitted information, which we have marked, is private under section 552.137. You must release the remaining information to the requestor.

You ask that this office issue to the department a previous determination allowing the department to withhold certain information located in copies of requested birth certificates. We decline to do so. Therefore, 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,

V.G. Schimmel
Assistant Attorney General
Open Records Division
VGS/sdk
Ref: ID# 173624
Enc: Submitted documents

c: Mr. Roy Gonzalez
Route 21, Box 107
Mission, Texas 78504
(w/o enclosures)


 

Footnotes

1. We note that social security information has been redacted from the submitted information. You do not assert, nor has our review of our records indicated, that you have been granted a previous determination to withhold such information without seeking a ruling from this office. As we are able to ascertain the category of information you have redacted, being deprived of the redacted information does not inhibit our ability to make a ruling in this instance. Nevertheless, be advised that a failure to provide this office with requested information generally deprives us of the ability to determine whether information may be withheld and leaves this office with no alternative other than ordering that the redacted information be released.
 

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