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May 4, 2000

Ms. Nan Hundere
Walsh, Anderson, Brown, Schulze & Aldridge, P.C.
P. O. Box 460606
San Antonio, Texas 78246-0606

OR2000-1735

Dear Ms. Hundere:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 134811.

The Northside Independent School District (the "district"), which you represent, received a request for "all records, documents, correspondence and incident reports involving my child and myself" from a parent of children who attend one of the district's schools. You state that the district agrees that the requestor "is entitled to all educational records concerning her children," and that the district has released some of the requested information and will release other records identified as public information. However, you assert that statements of witnesses to on-campus incidents are confidential pursuant to sections 552.101 and 552.131 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.(1)

First, we address your section 552.101 claim. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Common law privacy excepts from disclosure private facts about an individual. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Information may be withheld from the public when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. Id. at 685; Open Records Decision No. 611 at 1 (1992). We find that there is a legitimate public interest in the statements of students and witnesses to incidents occurring on the grounds of public schools. Therefore, the information may not be withheld pursuant to section 552.101.

Next, we note that the submitted documents contain information which may qualify as student education records. The federal Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. 1232g, and section 552.026 of the Government Code provide 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); see also Open Records Decision Nos. 462 (1987), 447 (1986). 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). You must withhold any information that identifies students other than the requestor's children. We note that even initials may identify a student, so you should redact those as well, but may not redact the requestor's children's names. If you have further questions as to the applicability of FERPA to information that is the subject of an open records request, you may consult with the United States Department of Education's Family Policy Compliance Office. See Open Records Decision No. 634 at 4 n.6, 8 (1995).

Next, you contend that section 552.131 of the Government Code excepts the identities and written statements of employee and student witnesses to the documented events, as these witnesses are informers within the meaning of section 552.131. As added to chapter 552 of the Government Code by the Seventy-sixth Legislature, section 552.131 provides as follows:

(a) "Informer" means a student or former student or an employee or former employee of a school district who has furnished a report of another person's or persons' possible violation of criminal, civil, or regulatory law to the school district or the proper regulatory enforcement authority.

(b) An informer's name or information that would substantially reveal the identity of an informer is excepted from [required public disclosure].

(c) Subsection (b) does not apply:

(1) if the informer is a student or former student, and the student or former student, or the legal guardian, or spouse of the student or former student consents to disclosure of the student's or former student's name; or

(2) if the informer is an employee or former employee who consents to disclosure of the employee's or former employee's name; or

(3) if the informer planned, initiated, or participated in the possible violation.

(d) Information excepted under Subsection (b) may be made available to a law enforcement agency or prosecutor for official purposes of the agency or prosecutor upon proper request made in compliance with applicable law and procedure.

(e) This section does not infringe on or impair the confidentiality of information considered to be confidential by law, whether it be constitutional, statutory, or by judicial decision, including information excepted from the requirements of Section 552.021.

Gov't Code 552.131.(2) Because the legislature limited the protection of section 552.131 to the identity of a person who reports a possible violation of "law," a school district that seeks to withhold information under that exception must clearly identify to this office the specific civil, criminal, or regulatory law that is alleged to have been violated. See Gov't Code 552.301(e)(1)(A). As you have not informed us of any specific law or regulation that is reported to have been violated, and have not marked the documents as to what specific information the district seeks to withhold, we conclude that you may not withhold the employees' identities or statements under section 552.131. As noted above, information identifying students must be withheld under FERPA. The district must release the documents as redacted.

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,

Patricia Michels Anderson
Assistant Attorney General
Open Records Division

PMA/ljp

Ref: ID# 134811

Encl. Submitted documents

cc: Ms. Bertha Salinas
302 Barbuda Street
San Antonio, Texas 78227
(w/o enclosures)


 

Footnotes

1. We note that there seems to be some confusion about whether the district timely requested a decision from this office. The district received the initial request for information on February 18, 2000. This office received your request for a decision on March 3, 2000, postmarked March 2, 2000, which, considering the Presidents' Day holiday of February 21, makes your request timely. We will treat the subsequent correspondence from the district and the requestor as supplemental to that initial request.

2. As of September 1, 1999, there were four sections of chapter 552 of the Government Code denominated as section 552.131. The quoted section 552.131 was added by the Act of May 30, 1999, 76th Leg., R.S., ch. 1335, 6, 1999 Tex. Gen. Laws 4543, 4545 (codified at Gov't Code 552.131).
 

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