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ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
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April 28, 2008

Ms. Mari M. McGowan

Abernathy, Roeder, Boyd & Joplin, P.C.

P.O. Box 1210

McKinney, Texas 75070-1210

OR2008-05645

Dear Ms. McGowan:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 308496.

The McKinney Independent School District (the "district"), which you represent, received a request for information pertaining to complaints or reprimands against three named individuals regarding misappropriation of funds or stipends with no receipts. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. (1) We have considered the exception you claim and reviewed the submitted information. We have also considered comments from attorneys representing the three named individuals. See Gov't Code 552.304 (interested party may submit comments stating why information should or should not be released).

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code 552.101. Section 552.101 encompasses section 21.355 of the Education Code, which provides, "[a] document evaluating the performance of a teacher or administrator is confidential." Educ. Code 21.355. In addition, the court has concluded a written reprimand constitutes an evaluation for purposes of section 21.355 because "it reflects the principal's judgment regarding [a teacher's] actions, gives corrective direction, and provides for further review." North East Indep. Sch. Dist. v. Abbott, 212 S.W.3d 364 (Tex. App.--Austin 2006, no pet.). 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). Additionally, this office has determined that an administrator is someone who is required to hold and does hold a certificate or permit required under chapter 21 of the Education Code and is serving as an administrator at the time of the evaluation. Id.

Both the district and the attorneys for the three named individuals contend that the submitted information contains evaluative documentation and information regarding an investigation of the individuals' performance. Having considered the submitted arguments and reviewed the information at issue, we find that none of the submitted information consists of an evaluation or a written reprimand as contemplated by section 21.355 or as interpreted by North East Independent School District. Accordingly, the district may not withhold any of the submitted information under section 552.101 of the Government Code in conjunction with section 21.355 of the Education Code.

We note that section 552.117 of the Government Code may be applicable to some of the submitted information. (2) Section 552.117(a)(1) excepts from disclosure the home address and telephone number, social security number, and family member information of a current or former official or employee of a governmental body who requests that this information be kept confidential under section 552.024 of the Government Code. Whether a particular item of information is protected by section 552.117(a)(1) must be determined at the time of the governmental body's receipt of the request for the information. See Open Records Decision No. 530 at 5 (1989). Thus, information may only be withheld under section 552.117(a)(1) on behalf of a current or former official or employee who made a request for confidentiality under section 552.024 prior to the date of the governmental body's receipt of the request for the information. Information may not be withheld under section 552.117(a)(1) on behalf of a current or former official or employee who did not timely request under section 552.024 that the information be kept confidential. We have marked information that the district must withhold under section 552.117(a)(1) if the district employees at issue timely requested confidentiality for the marked information under section 552.024.

In summary, the district must withhold the information we have marked pursuant to section 552.117(a)(1) if the employees to whom the information belongs timely elected to keep their information confidential. (3) The remaining information must be released.

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 file suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such a challenge, 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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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 challenge that decision by suing the governmental body. Id. 552.321(a); Texas Dep't of Pub. 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 Office of the Attorney General 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,

Nancy E. Griffiths

Assistant Attorney General

Open Records Division

NEG/jb

Ref: ID# 308496

Enc. Submitted documents

c: Ms. Laura Goodson

12 Brookhaven

Lucas, Texas 75002

(w/o enclosures)

Mr. Mark Slavin

P.O. Box 2168

Van Alstyne, Texas 75495

(w/o enclosures)

Mr. Dennis J. Eichelbaum

Schwartz & Eichelbaum, P.C.

7400 Gaylord Parkway, Suite 200

Frisco, Texas 75034

(w/o enclosures)

Mr. Shane Goetz

Law Office of Shane Goetz

1304 West Abram Street, Suite 100

Arlington, Texas 76013

(w/o enclosures)

Mr. Ted Moore

Lovejoy Independent School District

259 Country Club Road

Allen, Texas 75002

(w/o enclosures)


Footnotes

1. Although you also raise section 552.103 of the Government Code, you have not submitted arguments explaining how this exception applies to the submitted information. Therefore, we presume that you have withdrawn this exception. See Gov't Code 552.301, .302.

2. Unlike other exceptions to disclosure under the Act, this office will raise section 552.117 on behalf of a governmental body, as this exception is mandatory and may not be waived. See Gov't Code 552.007, .352; Opedn Records Decision No. 674 at 3 n.4 (2001) (mandatory exceptions).

3. We note that section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act.

 

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