|Office of the Attorney General - State of Texas
July 28, 2000
Mr. Robert Schulman
Dear Mr. Schulman:
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# 137542.
The United Independent School District (the "district"), which you represent, received a request for information relating to the dismissal of the requestor, a former employee of the district. You claim that the requested information is excepted from disclosure under sections 552.026, 552.101, 552.103, 552.114, and 552.131 of the Government Code. We have considered the exceptions you claim and have reviewed the information you submitted.(1)
Initially we note that section 552.022 of the Government Code is relevant to whether a portion of the requested information may be withheld from public disclosure. Section 552.022 provides in relevant part:
a) [T]he following categories of information are public information and not excepted from required disclosure under [chapter 552 of the Government Code] unless they are expressly confidential under other law:
(1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108[.]
Gov't Code § 552.022(a)(1). Thus, pursuant to section 552.022(a)(1), a completed report or investigation is subject to required public disclosure unless it is expressly confidential under other law or excepted from disclosure under section 552.108. You have not raised section 552.108, and section 552.103 is not "other law," for the purposes of section 552.022(a), that makes information expressly confidential. We have marked those segments of the submitted information that are subject to required public disclosure under section 552.022(a)(1). Unless otherwise specified elsewhere in this ruling, that information must be released in its entirety.
Section 552.101 of the Government Code excepts from required public disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Section 552.101 encompasses information that is made confidential by other statutes. See Open Records Decision No. 658 at 4 (1998). The federal Family Educational Rights and Privacy Act of 1974 (FERPA"), 20 U.S.C. § 1232g, 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). 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 at 3 (1982), 206 at 2 (1978).
Section 552.114(a) of the Government Code requires that the district 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). You state that pursuant to Open Records Decision No. 634 (1995), you have pre-redacted information that could be used to personally identify a student. We therefore assume that the district will not release any information that is protected under FERPA and sections 552.026, 552.101, and 552.114.(2)
You also seek to withhold, under section 552.101, responsive information that you claim is personal and of no legitimate concern to the public. Section 552.101 also excepts from disclosure information that is protected by the common law right of privacy. See Industrial Found. v. Texas Ind. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Information must be withheld under section 552.101 in conjunction with common law privacy 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. Industrial Found., 540 S.W.2d at 685. The matters considered to be intimate and embarrassing by the Texas Supreme Court in Industrial Foundation include sexual assault, pregnancy, mental or physical abuse in the workplace, illegitimacy, psychiatric treatment, attempted suicide, and injuries to reproductive organs. Id. at 683; see also Open Records Decision No. 659 at 5 (1999).
As the submitted information pertains in part to persons who were employed by the district at the time of the events in question, section 552.102 also is relevant here. Section 552.102 excepts from disclosure "information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]" Gov't Code § 552.102(a). The protection that section 552.102(a) affords to personnel records corresponds to that which section 552.101 provides to information made confidential under common law privacy and the test in Industrial Foundation. See Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 549-51 (Tex. App.--Austin 1983, writ ref'd n.r.e.). Employee privacy under section 552.102(a) is narrower than common law privacy under section 552.101, however, because of the greater legitimate public interest in matters involving public employees. See, e.g., Open Records Decision Nos. 473 at 3 (1987), 444 at 3-4 (1986), 423 at 2 (1984). Generally, section 552.102(a) protects employee information from disclosure only when the information in question reveals "intimate details of a highly personal nature." See Open Records Decision No. 423 at 2 (1984). Moreover, section 552.102(a) further provides that "all information in the personnel file of an employee of a governmental body is to be made available to that employee or the employee's designated representative as public information is made available under this subchapter." Gov't Code § 552.102(a). Thus, personnel information pertaining to the requestor may not be withheld under section 552.102(a) on the ground that its disclosure would constitute an invasion of his privacy interests. See also Gov't Code § 552.023(a); Open Records Decision Nos. 481 at 5 (1987), 288 at 3-4 (1981). We have reviewed the information that you claim is excepted from disclosure under section 552.101 and find that none of it is protected under sections 552.101 and 552.102 in conjunction with the common law right of privacy.
You also claim that the requested information relates to anticipated litigation. Section 552.103, the "litigation exception," provides in relevant part:
(a) Information is excepted from [required public disclosure] if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party.
. . .
(c) Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information.
Gov't Code § 552.103(a), (c). A governmental body that raises a claim under section 552.103 has the burden of providing relevant facts and documentation sufficient to establish the applicability of section 552.103 to the information that it seeks to withhold. To sustain its burden, the governmental body must demonstrate: (1) that litigation is pending or reasonably anticipated on the date that the governmental body receives the request for information and (2) that the information in question is related to that litigation. See University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479 (Tex. App.--Austin 1997, no pet.); Heard v. Houston Post Co., 684 S.W.2d 210 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); see also Open Records Decision No. 551 at 4 (1990). Both elements of the test must be met in order for information to be excepted from disclosure under section 552.103. Id.
The question of whether litigation is reasonably anticipated must be determined on a case-by-case basis. See Open Records Decision No. 452 at 4 (1986). To establish that litigation is reasonably anticipated, a governmental body must provide this office with "concrete evidence showing that the claim that litigation may ensue is more than mere conjecture." Id. Among other examples, this office has concluded that litigation was reasonably anticipated where the opposing party took the following objective steps toward litigation: (1) filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), see Open Records Decision No. 336 (1982); (2) hired an attorney who made a demand for disputed payments and threatened to sue if the payments were not made promptly, see Open Records Decision No. 346 (1982); and (3) threatened to sue on several occasions and hired an attorney, see Open Records Decision No. 288 (1981). In this instance, you state that the requestor has asserted his intention to sue the district in the event that some adverse employment action is taken against him. As the mere possibility of a lawsuit does not establish a reasonable anticipation of litigation, none of the submitted information may be withheld under section 552.103. See Open Records Decision No. 452 at 4-5 (1986) (stating that the fact, standing alone, that on more than one occasion a requestor publicly states an intent to sue does not trigger claim under statutory predecessor).
Section 552.131 of the Act, as added to chapter 552 of the Government Code by the Seventy-sixth Legislature, 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.(3) Because the legislature specifically 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 also Gov't Code § 552.301(e)(1)(A). In this instance, you inform us that the submitted information includes both witnesses' names and information that would reveal the identities of witnesses and that none of those individuals has consented to the disclosure of identifying information. You seek to withhold witness information under section 552.131. However, you have not informed us of any specific law or regulation that is alleged to have been violated by any individual about whom the witnesses' statements were made. Therefore, none of the submitted information is excepted from disclosure under section 552.131.
Finally, we note that the submitted records include information that may be excepted from disclosure under section 552.117 of the Government Code. 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, and 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 §§ 552.117(1), 552.024(a); see also Open Records Decision Nos. 622 (1994), 530 (1989), 455 (1987). We have labeled the information that the district may be required to withhold under sections 552.117(1) and 552.024(a).
In summary, certain segments of the submitted information are subject to required public disclosure under section 552.022(a)(1) of the Government Code. Additionally, section 552.102(a) requires the release of personnel information, relating to the requestor, that is not protected by an exception to disclosure unrelated to his privacy interests. None of the submitted information is excepted from disclosure under sections 552.101 and 552.102 in conjunction with common law privacy, 552.103, or 552.131. Some items of information may be protected under sections 552.024 and 552.117. With those possible exceptions, the submitted information must be released.
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.
James W. Morris, III
Ref: ID# 137542
Encl. Submitted documents
cc: Mr. Luis H. Romero, Jr.
1. In your letter requesting this letter ruling, you initially also listed as "exceptions which apply" sections 552.102, 552.104, 552.105, 552.107, 552.108, 552.109, 552.110, 552.111, 552.113, 552.117, 552.122, 552.124, 552.126, 552.127, 552.130, 552.305, and 552.022. Sections 552.305 and 552.022 are not exceptions to required public disclosure, and a number of the exceptions that you listed clearly are not applicable to the requested information. This letter ruling considers only those exceptions to disclosure that you addressed in your letter brief dated May 31, 2000. We recommend that, in the future, you be more selective in raising the exceptions to disclosure that you deem to be applicable. See Open Records Decision No. 665 (2000).
2. We have labeled two additional items of information which we believe that you intended to redact under Open Records Decision No. 634 (1995) and that also should be withheld. With further regard to ORD 634, we also note that if an educational agency or institution wishes to seek an attorney general decision and raise exceptions to the disclosure of requested records, and those records contain any information that is protected from disclosure under FERPA and sections 552.026, 552.101, and 552.114, the educational agency or institution may either (1) redact the protected information in compliance with Open Records Decision No. 634 (1995) and submit the redacted records to this office for a ruling on any other exceptions that the educational agency or institution deems to be applicable, or (2) submit the requested records, without redactions, and raise the educational agency or institution's exceptions to disclosure, including FERPA and sections 552.101, 552.026, and 552.114. See also Office of the Attorney General, 2000 Public Information Handbook at 124 n.593 (describing advisory from Family Policy Compliance Office, U.S. Department of Education).
3. As of the date of this letter ruling, four different sections of the Act were denominated as section 552.131. The section 552.131 that you raise was added to chapter 552 of the Government Code by the Act of May 30, 1999, 76th Leg., R.S., ch. 1335, § 6, 1999 Tex. Gen. Laws 4543, 4545.
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