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Office of the ATTORNEY GENERAL
GREG ABBOTT
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December 16, 2002

Mr. Richard A. Streiber
Escamilla & Poneck, Inc.
P.O. Box 200
San Antonio, Texas 78291-0200

OR2002-7184

Dear Mr. Streiber:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173771.

The Eagle Pass Independent School District (the "district"), which you represent, received a request for all information "relating to the recently concluded investigation against Mr. Frank Sanchez." You state that you are releasing most of the requested information. You claim that the remaining requested information is excepted from disclosure under sections 552.026, 552.114, and 552.131 of the Government Code.(1) We have considered the exceptions 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 other statutes, such as 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'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). This office generally applies the same analysis under section 552.114 and FERPA. Open Records Decision No. 539 (1990).

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.

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 (1982), 206 (1978). We note that for purposes of FERPA, students' handwritten letters constitute "education records" in that they contain information about identifiable students. See Open Records Decision No. 224 (1979) (student's handwritten comments that would make identity of student easily traceable through handwriting, style of expression, or particular incidents related in comments protected under FERPA). You state that the submitted information consists of the handwritten statements of students. Accordingly, we have marked the handwritten letters and statements that must be withheld in their entirety pursuant to sections 552.026 and 552.114 of the Government Code.

We note, however, that some of the submitted documents do not appear to be handwritten statements of students but rather appear to be notes taken by an investigator. Accordingly, you may not withhold these documents in their entirety, but rather you must withhold only the information on these documents that would tend to personally identify a particular student. We have marked the types of information on these pages of notes that may reveal or tend to reveal the identity of a student that must be withheld pursuant to sections 552.026 and 552.114 of the Government Code.

You contend that section 552.135 of the Government Code excepts from release the submitted names and information provided by school district informers, whether students or employees. Section 552.135 provides in pertinent part 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].

Gov't Code 552.135. Because the legislature limited the protection of section 552.135 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). You have not identified a specific civil, criminal, or regulatory law that is alleged to have been violated. Accordingly, we find that section 552.135 is inapplicable to the information at hand.

In summary, you must withhold the handwritten letters and statements of students, which we have marked, in their entirety pursuant to sections 552.026 and 552.114 of the Government Code. You must withhold all information, the types of which we have marked, that may reveal or tend to reveal the identity of a student pursuant to sections 552.026 and 552.114 of the Government Code. You must release the remaining information.

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,

Maverick F. Fisher
Assistant Attorney General
Open Records Division
MFF/seg
Ref: ID# 173771
Enc: Submitted documents

c: Mr. Michael J. Currie
Texas Classroom Teachers Association
P.O. Box 1489
Austin, Texas 78767
(w/o enclosures)


 

Footnotes

1. Although you raise section 552.131 as an exception to release, from your arguments we understand you to mean section 552.135. Accordingly, we will treat the arguments you make under section 552.131 as arguments raised under section 552.135.
 

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