|Office of the Attorney General - State of Texas
February 11, 2000
Ms. Lynn Rossi Scott
Dear Ms. Scott:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131550.
The Hurst-Euless-Bedford Independent School District ("HEBISD"), which you represent, received three requests for information regarding complaints and allegations against two named HEBISD employees. We note that the requested information concerning the annual salary and other compensation of one of the named employees was not submitted for review. We, therefore, presume that the information has been released. You claim that the remaining responsive information is excepted from disclosure under sections 552.101and 552.131 of the Government Code and the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. §1232g ("FERPA"). 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 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).
You argue that a particular document is excepted from disclosure under common law privacy because it pertains to complaints and allegations of sexual harassment. In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.--El Paso 1992, writ denied), the court addressed the applicability of the common law privacy doctrine to files of an investigation of allegations of sexual harassment. The investigation files in Ellen contained individual witness statements, an affidavit by the individual accused of the misconduct responding to the allegations, and conclusions of the board of inquiry that conducted the investigation. Ellen, 840 S.W.2d at 525. The court ordered the release of the affidavit of the person under investigation and the conclusions of the board of inquiry, stating that the public's interest was sufficiently served by the disclosure of such documents. Id. In concluding, the Ellen court held that "the public did not possess a legitimate interest in the identities of the individual witnesses, nor the details of their personal statements beyond what is contained in the documents that have been ordered released." Id.
When there is an adequate summary of the investigation, the summary must be released, but the identities of the victims and witnesses must be redacted and their detailed statements must be withheld from disclosure. When, as here, no adequate summary exists, detailed statements regarding the allegations must be released, but the identities of witnesses and victims must still be redacted from the statements. Ellen, 840 S.W.2d at 525. Therefore, we conclude that the HEBISD must release the de-identified statement of the alleged victim to the requestor.
You have indicated in one of the documents that certain information which refers to an individual's medical condition is excepted from disclosure under section 552.101. Section 552.101 also protects some medically related information under common law privacy. See Open Records Decision No. 478 (1987). Individual determinations are required. Open Records Decision No. 370 (1983). This office has determined that the following information is excepted from disclosure by common law privacy: some kinds of medical information or information indicating disabilities or specific illnesses, see Open Records Decision Nos. 470 (1987) (illness from severe emotional and job-related stress), 455 (1987), the fact that a person broke out in hives as a result of severe emotional distress, Open Records Decision No. 470 (1987), the kinds of prescription drugs a person is taking, Open Records Decision No. 455 (1987), and information regarding drug overdoses, acute alcohol intoxication, obstetrical/gynecological illnesses, convulsions/seizures, or emotional/mental distress, Open Records Decision No. 343 (1982). See also Open Records Decision No. 422 (1984) (regarding emotional or mental distress). We have marked the medically related information that must be withheld from disclosure under section 552.101.
You also argue that some of the requested information is protected from disclosure by section 552.131 of the Government Code, which reads 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 the requirements of Section 552.021.
(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.
You explain that the documents at issue contain allegations of potential violations of criminal, civil, or regulatory law. The documents are all directed or addressed to persons in positions of authority in HEBISD, including principals and the superintendent. Further, you claim that none of the informers "planned, initiated, or participated in the possible violation." Gov't Code § 552.131(c)(3). However, you have not attempted to explain in any case what civil, criminal or regulatory law was allegedly violated. We find that there is only one instance in which the information shows an allegation of a violation of criminal, civil, or regulatory law. We have marked the identity of the only informer which must be withheld under section 552.131. You may not withhold any other information based on section 552.131.
We note, however, that some of the documents subject to release may include information that is excepted from disclosure under section 552.117. Section 552.117 of the Government Code excepts from disclosure the home addresses, home telephone numbers, social security numbers, and family member information of current or former officials or employees of a governmental body who requests that this information be kept confidential in accordance with section 552.024. Whether a particular piece of information is protected by section 552.117 must be determined at the time the request for it is made. See Open Records Decision No. 530 at 5 (1989). The HEBISD must withhold this type of information pursuant to section 552.117 only to the extent that its employees elected to keep this information confidential prior to the HEBISD's receipt of the current records request.
Finally, you assert that the student-identifying information is excepted from required public disclosure based on the Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g. FERPA is incorporated into the Public Information Act by section 552.026 of the Government Code which governs the release of student-identifying information. Section 552.026 of the Government Code 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.
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); See also Open Records Decision No. 634 (1995) (educational agency or institution may withhold personally identifiable nondirectory information without necessity of requesting attorney general decision). "Education records" are 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).
We believe that the documents at issue are "education records" for purposes of FERPA. See Open Records Decision No. 332 (1982). However, section 552.026 in conjunction with FERPA may not be used to withhold entire documents; HEBISD must delete information only to the extent "reasonable and necessary to avoid personally identifying a student" or one or both of the student's parents. See id.; Open Records Decision No. 206 (1978). Thus, only information identifying or tending to identify students or their parents must be withheld from required public disclosure. We have marked additional information that appears to identify students and parents that HEBISD must not release to the public.
As to the students' handwritten statements, they constitute "education records" for purposes of FERPA 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). Therefore, the handwritten statements must be withheld in their entirety pursuant to section 552.026 of the Government Code.
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.
Encl. Submitted documents
cc: Ms. Paula Caballero
Ms. Marice Richter
Ms. Barbara Griffin
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US