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September 22, 2000

Mr. Jose R. Guerrero
Montalvo & Ramirez
Attorneys at Law
900 North Main

McAllen, Texas 78501

OR2000-3682

Dear Mr. Guerrero:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 139803.

The La Joya Independent School District (the "district"), which you represent, received a request for seven items relating to the hiring of a specified coach including job postings, applicant information, selection criteria, interviewers' notes, and any board meeting agendas concerning hiring of the coach. In item 7, the requestor also asks for the coach's service record, transcript, reprimands, and documents relating to the coach's job performance and reassignment. You claim that documents relating to reprimands and job performance are excepted from disclosure under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. Because you have only requested a decision concerning these documents, we assume that you have released the remaining responsive information. See Gov't Code 552.301(a) (providing that governmental body must ask for a decision from the attorney general in order to withhold information). We have considered the exception you claim and reviewed the submitted information.

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 statute. Section 21.355 of the Education Code provides that "[a] document evaluating the performance of a teacher or administrator is confidential." This office has 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). We agree that the documents in Exhibit C "evaluate the performance of a teacher" and must be withheld pursuant to section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. However, we do not believe that the reprimand in Exhibit B evaluates the performance of a teacher as contemplated by section 21.355 of the Education Code. Therefore, you may not withhold Exhibit B under section 552.101 of the Government in conjunction with section 21.355 of the Education Code.

We note that Exhibit B contains a student's name which must be withheld pursuant to the Family Educational Rights and Privacy Act of 1974 ("FERPA"). 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. 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).

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. This office generally applies the same analysis under section 552.114 and FERPA. Open Records Decision No. 539 (1990).

In this instance, you have submitted documents which contain information directly related to students and that are maintained by the district. FERPA requires the district to redact information from the submitted information to the extent "reasonable and necessary to avoid personally identifying a particular student." Open Records Decision Nos. 332 (1982), 206 (1978). This identifying information is deemed confidential under FERPA and must be withheld from disclosure. We have marked the information which personally identifies a particular student. The district must withhold the marked FERPA information under sections 552.026 and 552.114 of the Government Code.

In conclusion, you must withhold Exhibit C under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code. You must release Exhibit B with the student's name redacted under FERPA.

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 the General Services 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. 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,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB\er

Ref: ID# 139803

Encl: Marked documents

cc: Mr. Dohn S. Larson
Chief Staff Attorney
Texas Classroom Teachers Association
P.O. Box 1489
Austin, Texas 78767
(w/o enclosures)


 

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