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November 24, 1999

Ms. Jennifer L. Lehmann
Escamilla & Poneck, Inc.
1200 South Texas Building
603 Navarro Street
San Antonio, Texas 78205-1826

OR99-3390

Dear Ms. Lehmann:

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# 129636.

The San Antonio Independent School District (the "district"), which you represent, received a written request for, among other things, all "documentation" used by the district when it considered terminating the employment of four named teachers. You contend that the requested documents are excepted from required public disclosure pursuant to sections 552.101, 552.102, 552.103, 552.107, and 552.114 in conjunction with section 552.026 of the Government Code.

We note at the outset that many of the documents at issue contain the teachers' home address, home telephone number, and social security number. Section 552.117 of the Government Code 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 requests that this information be kept confidential in accordance with 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). The district must withhold the teachers' home address, home telephone number, social security number, and family member information pursuant to section 552.117 only to the extent that the respective teacher elected to keep this information confidential prior to the district's receipt of the current records request. Otherwise, these categories of information must be released,(1) except as discussed below.

Section 552.102(a) of the Government Code protects "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy . . . ." Section 552.102(a) is designed to protect public employees' personal privacy. The scope of section 552.102(a) protection, however, is very narrow. See Open Records Decision No. 336 (1982). See also Attorney General Opinion JM-36 (1983). The test for section 552.102(a) protection is the same as that for information protected by common-law privacy under section 552.101 of the Government Code: the information must contain highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and the information must be of no legitimate concern to the public. Hubert v. Harte-Hanks Texas Newspapers, Inc., 652 S.W.2d 546, 550 (Tex. App. - Austin 1983, writ ref'd n.r.e.). The information at issue pertains solely to the employees' qualifications and actions as public servants, and as such cannot be deemed to be outside the realm of public interest. See Open Records Decision No. 444 (1986) (public has legitimate interest in knowing reasons for dismissal, demotion, promotion, or resignation of public employees). Section 552.102 was not intended to protect the type of information at issue here.

You express particular concern about the documentation pertaining to one of the referenced teachers, who was acquitted by a jury of criminal wrongdoing. You state:

As such, the allegations against him proved to be unfounded. To release the District's investigative file would damage his reputation with facts that are unsubstantiated and meritless, would place much doubt on his credibility as a teacher, and would also expose him to humiliation and public ridicule, in effect, double jeopardy, for unsubstantiated allegations from which he has already been absolved by a court of law.

It thus appears that you contend that the information pertaining to the allegations against this teacher should be withheld from the public because it is untrue or misleading. These are not factors to be considered in the open records process. See Open Records Decision No. 579 (1990); see also Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994) (state of Texas does not recognize tort of false-light invasion of privacy). If, however, portions of the information at issue in fact are inaccurate or untrue, there is no reason that the district may not also release, along with the requested documents, other supplemental information that explains why and to what extent the information is inaccurate or that otherwise clarifies the information contained in the records at issue. In any event, the district may not withhold any of the requested information from the public on privacy grounds.

You have submitted to this office redacted copies of the teachers' college transcripts. Section 552.102(b) of the Government Code 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.

In Open Records Decision No. 526 at 2-3 (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.

It appears that you have attempted to comply with ORD 526 by redacting the teachers' grades from the transcripts in question. We note, however, that some of the transcripts contain "points" that have been earned for each particular college class. We believe that the number of such "points" may reflect the grade the teacher received for those classes. Accordingly, the district should also withhold the "point" figures from the transcripts pursuant to section 552.102(b).

We additionally note that some of the information at issue is deemed confidential by law found outside the Public Information Act. Some of the records before us consist of either police reports or correspondence between the district and Child Protective Services pertaining to reports of alleged injury to a child. Section 261.201(a) of the Family Code provides:

The following information is confidential, is not subject to public release under Chapter 552, Government Code, and may be disclosed only for purposes consistent with this code and applicable federal or state law or under rules adopted by an investigating agency:

(1) a report of alleged or suspected abuse or neglect [of a child] made under this chapter and the identity of the person making the report; and

(2) except as otherwise provided in this section, the files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation. [Emphasis added.]

To the extent that the documents before us were used by Child Protective Services in its chapter 261 investigation, those records are confidential under section 261.201 as files, reports, records, communications, and working papers used or developed in an investigation under chapter 261 and must be withheld. Similarly, the district police report contained in Exhibit C-2, which pertains to an alleged injury to a child, must also be withheld in its entirety pursuant to section 261.201.

We also note that one of the files you submitted to this office for review includes an Employment Eligibility Verification, Form I-9.(2) Form I-9 is governed by title 8, section 1324a of the United States Code, which provides that the form "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. 8 U.S.C. 1324a(b)(5). Release of this document under the Public Information Act would be "for purposes other than for enforcement" of the referenced federal statutes. Accordingly, we conclude that Form I-9 is confidential for purposes of section 552.101 of the Government Code and may only be released in compliance with the federal laws and regulations governing the employment verification system.

You next contend that the requested records pertaining to one of the referenced teachers is excepted from required public disclosure pursuant to section 552.103 of the Government Code. To secure the protection of section 552.103, a governmental body must demonstrate that the requested information relates to pending or reasonably anticipated litigation.

University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin 1997, no pet.); Open Records Decision No. 588 at 1 (1991). You have submitted to this office in connection with this request a copy of the "Plaintiff's Original Petition," which was filed against the district. We agree that the documents you submitted to this office under Exhibit D "relate" to that litigation for purposes of section 552.103. Accordingly, the district may withhold most of the documents in Exhibit D pursuant to section 552.103.(3)

It is apparent to this office, however, that some of the documents in Exhibit D have previously been provided to the plaintiffs in the litigation against the district. Once the opposing parties in litigation have access to the records at issue, e.g., through discovery or otherwise, no section 552.103 interest exists with respect to that information.(4) Open Records Decision Nos. 349 (1982), 320 (1982). Consequently, the district may not withhold such documents from the requestor pursuant to section 552.103. But see discussion of sections 552.026 and 552.114 of Government Code, infra.

We also note that section 552.022(a)(2) of the Government Code makes public "the name, sex, ethnicity, salary, title, and dates of employment of each employee and officer of a governmental body." Additionally, 552.022(a)(3) of the Government Code makes public "information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body." Because these categories of information are specifically made public under section 552.022(a)(3), the district may not withhold these types of information, including the teacher's employment contracts, pursuant to section 552.103.

You also contend that two of the personnel files have been "sealed" in accordance with settlement agreements that the district reached with two of the referenced teachers. It is well established that information may not be withheld under the Public Information Act merely because the party submitting the information anticipates or requests that it be kept confidential. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 677 (Tex. 1976), cert. denied 430 U.S. 931 (1977). In other words, a governmental body cannot, through a contract, overrule or repeal provisions of the Public Information Act. Attorney General Opinion JM-672 (1987); but see Open Records Decision No. 284 (1981) (letters of recommendation submitted pursuant to express contracts of confidentiality prior to 1973, when Open Records Act was enacted, are enforceable). Consequently, unless the requested information falls within one of the act's exceptions to disclosure, it must be released, notwithstanding any contract between the district and the teachers specifying otherwise.

You state, however, that the settlement agreements were

approved by the Independent Hearing Examiner assigned to the case. In approving the settlement agreement as written, the Independent Hearing Examiner validated the confidentiality of those documents. As a result, to release documents that have been deemed confidential by the Independent Hearing Examiner would question his authority and the viability of settlement agreements entered into by all governmental entities subject to the Open Records Act.

We assume, based on the above representations, that you have raised section 552.107 of the Government Code because the "confidentiality agreements" were approved by an independent hearing examiner. Section 552.107(2) of the Government Code requires that the district withhold all information made confidential by court order. We question whether such an agreement approved by an independent hearing examiner is tantamount to a "court order" for purposes of section 552.107(2). However, in this instance, we need not reach this issue. One of the settlement agreements you submitted to this office contains no such confidentiality provision - it merely provides that the district will provide the teacher with a "neutral letter of reference." The other settlement agreement provides that the teacher's personnel file "shall be released or re-opened as required by law, Court Order, or by administrative agency." (Emphasis added.) The Public Information Act is one such law that requires the information to be released, subject to the act's exceptions to disclosure. Consequently, neither of the settlement agreements make the respective personnel files confidential for purposes of section 552.107(2).

Finally, you contend that portions of the requested records must be withheld from the public pursuant to sections 552.026 and 552.114 of the Government Code. Section 552.114(a) requires that the district withhold

information in a student record at an educational institution funded wholly or partly by state revenue.

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.

The Family Educational Rights and Privacy Act of 1974 ("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 numerated federal, state, and local officials and institutions, unless otherwise authorized by the student's parent. See 20 U.S.C. 1232g(b)(1). When a student has attained the age of eighteen years or is attending an institution of postsecondary education, the student holds the rights accorded by Congress to inspect these records. 20 U.S.C. 1232g(d). "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. 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." Open Records Decision Nos. 332 (1982), 206 (1978). For purposes of FERPA, the records at issue constitute "education records" only to the extent that they contain information about identifiable students. Consequently, the district must withhold those portions of the records unless you receive permission to release the information from the parent of the student or from the student himself if qualified to do so as specified above. We have marked those portions of the records coming under the protection of sections 552.026 and 552.114.

Except as discussed above, the records at issue must be released to the requestor. We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.

Sincerely,

Patricia Michels Anderson
Assistant Attorney General
Open Records Division

PMA/RWP/jc

Ref.: ID# 129636

Encl.: Submitted documents

cc: Ms. Jeanne Russell
San Antonio Express-News
P.O. Box 2171
San Antonio, Texas 78297-2171
(w/o enclosures)


 

Footnotes

1. An individual's social security number is also excepted from required public disclosure under section 552.101 of the Government Code in conjunction with 1990 amendments to the federal Social Security Act, 42 U.S.C. 405(c)(2)(C)(viii)(I), if it 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 (1994). It is not apparent to us that the social security numbers contained in the records at issue were obtained or are maintained by the district pursuant to any provision of law enacted on or after October 1, 1990. 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 a social security number. Therefore, we have no basis for concluding that the social security numbers at issue were obtained or are maintained pursuant to such a statute and are therefore confidential under section 405(c)(2)(C)(vii)(I). 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, the district should ensure that these numbers were not obtained or maintained by the district pursuant to any provision of law enacted on or after October 1, 1990.

2. 2We note that you did not claim any exception for this document. However, this office will raise confidentiality provisions found outside of chapter 552 of the Government Code on behalf of a governmental body. Open Records Decision Nos. 481 (1987), 480 (1987), 470 (1987).

3. Because we resolve your request under section 552.103, we need not address the applicability of the other exception you raised.

4. We also note that the applicability of section 552.103 ends once the litigation has been concluded. Attorney General Opinion MW-575 (1982); Open Records Decision No. 350 (1982).
 

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