|Office of the Attorney General - State of Texas
July 12, 2000
Ms. Maureen Singleton
Dear Ms. Singleton:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137022.
The Spring Independent School District (the "district"), which you represent, received a request for a copy of all records in the possession of the district, the Westfield High School campus, and the district's police department that mention or relate to an incident involving a specific student, including names of specific people involved in the incident. You state you have provided the requestor access to thirteen pages of records that consist of all the Westfield High School documents and the offense report with the names and personally identifiable students' and informants' information redacted. You claim that the redacted information and the remainder of the requested information, submitted in Exhibits B and C, are excepted from disclosure under sections 552.101 and 552.108 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.
Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses confidentiality provisions such as Family Code section 58.007. Juvenile law enforcement records relating to conduct that occurred on or after September 1, 1997 are confidential under section 58.007. The relevant language of section 58.007(c) reads as follows:
(c) Except as provided by Subsection (d), law enforcement records and files concerning a child and information stored, by electronic means or otherwise, concerning the child from which a record or file could be generated may not be disclosed to the public and shall be:
(1) if maintained on paper or microfilm, kept separate from adult files and records;
(2) if maintained electronically in the same computer system as records or files relating to adults, be accessible under controls that are separate and distinct from controls to access electronic data concerning adults; and
(3) maintained on a local basis only and not sent to a central state or federal depository, except as provided by Subchapter B.
The information in Exhibit B involves juvenile conduct that occurred after September 1, 1997. It does not appear that any of the exceptions in section 58.007 apply; therefore, the requested information is confidential pursuant to section 58.007(c) of the Family Code. You must withhold Exhibit B, the police department file, from disclosure under section 552.101 of the Government Code.(1)
Next, you contend that information contained in Exhibit C is excepted from public disclosure under the informer's privilege and the Family Education Rights and Privacy Act ("FERPA"). First, we will examine your assertion that the informer's privilege excepts information contained in Exhibit C from public disclosure. Section 552.101 incorporates the "informer's privilege," which has been recognized by Texas courts. See Aguilar v. State, 444 S.W.2d 935, 937 (Tex. Crim. App. 1969). In Roviaro v. United States, 353 U.S. 53, 59 (1957), the United States Supreme Court explained the rationale that underlies the informer's privilege:
What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. [Citations omitted.] The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. [Emphasis added.]
The "informer's privilege" aspect of section 552.101 protects the identities of persons who report violations of the law. When information does not describe conduct that violates the law, the informer's privilege does not apply. Open Records Decision Nos. 515 (1988), 191 (1978). Although the privilege ordinarily applies to the efforts of law enforcement agencies, it can apply to administrative officials with a duty of enforcing the particular laws for which a violation has been reported. Attorney General Opinion MW-575 (1982); Open Records Decision Nos. 285 (1981), 279 (1981); see also Open Records Decision No. 208 (1978). This may include enforcement of quasi-criminal civil laws. Open Records Decision Nos. 515 (1988), 391 (1983). The privilege does not, however, protect the contents of communications if they do not reveal the identity of the informant. Roviaro, 353 U.S. at 60. Because part of the purpose of the privilege is to prevent retaliation against informants, the privilege does not apply when the informant's identity is known to the individual who is the subject of the complaint. See Open Records Decision No. 208 (1978).
We find that Exhibit C does contain information which reveals the identities of persons who reported a violation of the law, an assault. However, we find that, for Exhibit C, the persons reporting the assault made the report them to school officials rather than to officers charged with enforcement of that law. Furthermore, we find that the individual who is the subject of the complaint knows the identity of the bus driver who reported the assault. Therefore, we conclude that the informer's privilege under section 552.101 is inapplicable to the highlighted portions of Exhibit C that reveal the identities of the persons who reported the violation of the law. The district must release these highlighted portions of Exhibit C.
Next, you assert that sections 552.026 and 552.114 of the Government Code in conjunction with FERPA, except the personally identifiable information concerning students contained in Exhibit C. 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.
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).
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.
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 find that Exhibit C does contain personally identifiable information concerning students in education records. We conclude that the students' names and personally identifying information are excepted from public disclosure under FERPA in conjunction with sections 552.114 and 552.026.
In summary, the district must withhold Exhibit B in its entirety under section 552.101 of the Government Code and section 58.007 of the Family Code. The district may not withhold the information in Exhibit C that identifies those people who reported the criminal assault to the district's school officials pursuant to section 552.101 and the informer's privilege. Finally, the district must withhold the personally identifiable information concerning students contained in Exhibit C under FERPA in conjunction with sections 552.114 and 552.026 of the Government Code. The district must release the remainder of Exhibit C to 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.
Noelle C. Letteri
Ref: ID# 137022
Encl. Submitted documents
cc: Ms. Marion L. White
1. Because section 58.007 of the Family Code and section 552.101 are depositive, we need not address your other claimed exceptions for Exhibit B.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US