|Office of the Attorney General - State of Texas
December 6, 1999
Ms. Priscilla A. Lozano
Dear Ms. Lozano:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 130150.
The University of Texas at Austin (the "university"), received a request from an attorney representing Professor Gary Wise for extensive information concerning her client. You indicate you have released "voluminous documents" responsive to the request. You have provided for our review additional information that is responsive to the request, some of which you advise constitutes representative samples.(1) You assert the additional information is excepted from public disclosure under sections 552.101, 552.103, 552.107, and 552.111 of the Government Code. We have reviewed the information you have submitted and considered the exceptions you assert.
We note at the outset that some of the information responsive to the request may be excepted from disclosure under the federal Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g, or section 552.114 of the Government Code. In Open Records Decision No. 634 (1995), this office concluded: (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.
We remind you that Open Records Decision No. 634 applies only to "education records" under FERPA. "Education records" are records that
(i) contain information directly related to a student; and
(ii) 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). 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).(2) 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).
Pursuant to section 552.301, the Public Information Act imposes a duty on governmental bodies seeking an open records decision to submit that request to the attorney general within ten business days after the governmental body's receipt of the request for information. The time limitation found in section 552.301 is an express legislative recognition of the importance of having public information produced in a timely fashion. Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ). When a request for an open records decision is not made within the time period prescribed by section 552.301, the requested information is presumed to be public. See Gov't Code § 552.302. This presumption of openness can only be overcome by a compelling demonstration that the information should not be made public. See, e.g., Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests).
You state the request for information was "dated September 17, 1999" but you do not state when the university received the request. Section 552.301(e) of the Government Code requires inter alia that the governmental body requesting an attorney general decision must provide to this office, no later than fifteen days after receiving the written request for information, "a signed statement as to the date on which the written request for information was received by the governmental body or evidence sufficient to establish that date[.]" (emphasis added). Act of May 25, 1999, 76th Leg., R.S., ch. 1319, § 20, 1999 Tex. Sess. Law. Serv. 4500, 4509 (Vernon)(codified as an amendment to Gov't Code § 552.305). Our review of the written request indicates that it is stamped as received by the university on September 17, 1999. We find this constitutes sufficient evidence as to when the university received the request; hence; we conclude the request was received on September 17, 1999. Although your initial request letter is dated October 1, 1999, it is stamped as having been received by this office on October 5, 1999. The initial request letter was not postmarked, and it indicates it was sent to this office "via hand delivery." Consequently, you have not met your statutory burden. Gov't Code § 552.301. The requested information is therefore presumed public. Gov't Code § 552.302. In the absence of a demonstration that the requested information is confidential by law or that other compelling reasons exist as to why the information should not be made public, you must release the information. Open Records Decision No. 195 (1978). A compelling reason is demonstrated where information is made confidential by other law or where third party interests are involved. Open Records Decision No. 150 (1977).
We note that sections 552.103, 552.107, and 552.111 are discretionary exceptions. A governmental body thus waives these exceptions by failing to timely invoke them. See Open Records Decision No. 630 (1994) (section 552.107 is a discretionary exception), 551 (1990) (statutory predecessor to section 552.103 serves only to protect a governmental body's position in litigation, and does not itself make information confidential), 470 (1987) (statutory predecessor to section 552.111 is a discretionary exception). Therefore, we find the assertion of these exceptions does not constitute a compelling reason to overcome the presumption that the requested information is public. On the other hand, section 552.101 is designed to protect confidential information. We shall consider your section 552.101 assertion with respect to all of the submitted information, because a valid section 552.101 claim overcomes the presumption that the requested information is public.
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. Section 552.101 also encompasses common-law privacy and 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). Therefore, 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).
Section 552.023 of the Government Code provides that:
(a) A person or a person's authorized representative has a special right of access, beyond the right of the general public, to information held by a governmental body that relates to the person and that is protected from public disclosure by laws intended to protect that person's privacy interests.
(b) A governmental body may not deny access to information to the person, or the person's representative, to whom the information relates on the grounds that the information is considered confidential by privacy principles under this chapter but may assert as grounds for denial of access other provisions of this chapter or other law that are not intended to protect the person's privacy interests.
This section grants a special right of access to a person or a person's authorized representative to records that contain information relating to the person that are otherwise protected from public disclosure by laws intended to protect that person's privacy interests. Most of the submitted information concerns the alleged improper conduct of an employee of the university, and the reasons for his recommended termination. Information about public employees' job performance or the reasons for their dismissal, demotion, promotion, or resignation is not excepted from public disclosure. Open Records Decision Nos. 444 (1986), 405 (1983). The submitted documents also contain some information that implicates the privacy interests of Professor Gary Wise. However, the requestor in the present case is an attorney representing Professor Wise, and is therefore his authorized representative. See Gov't Code § 552.229. Thus, the specific information in the submitted documents that implicates the privacy interests of Professor Wise is not excepted from disclosure in this case. Except as may be applicable supra (e.g. student identifying information), we find no confidential information in the submitted documents that must be withheld from the requestor.
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.
Ref: ID# 130150
Encl. Submitted documents
cc: Ms. Vella M. Fink
1. In reaching our conclusion here, we assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988); 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
2. But see 20 U.S.C. § 1232g(a)(1)(A), (d) (parent or adult student has affirmative right of access to that student's education records). See also Open Records Decision No. 431 (1985) (Public Information Act's exceptions to required public disclosure do not authorize withholding of "education records" from adult student).
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