1. School District Records Lindsay Hale David Wheelus Assistant Attorneys General Open Records Division Views expressed are those of the presenter, do not constitute legal advice and are not official opinions of the Office of the Texas Attorney General

2. Education Records (slide 1 of 2) Education Records Section 1232g of Title 20 of the United States Code The Family Educational Rights & Privacy Act (“FERPA”) The United States Department of Education Family Policy Compliance Office has informed our office that FERPA does not permit state and local educational authorities to disclose to this office, without parental consent, unredacted, personally identifiable information of students contained in education records for the purpose of our review in the open records ruling process.

3. Education Records (Slide 2 of 2)  Our office is prohibited from reviewing education records to determine whether appropriate redactions under FERPA have been made.  Parents have a right of access to their own child’s education records under FERPA, which prevails over inconsistent provisions of state law.  FERPA is not applicable to law enforcement records maintained by a school district’s police department that were created by the department for a law enforcement purpose.

4. Amendment: 552.114 (slide 1 of 2)  Section 552.114 of the Government Code protects student records.  Section 552.114(a) defines “student record” as (1) Information that is in an education record as that term is defined by the Family Educational Rights and Privacy Act (“FERPA”); or (2) Information in a record of an applicant for admission to an educational institution, including a transfer applicant.  Section 552.114(b) makes student records confidential. This section does not prohibit disclosure or provision if disclosure or provision authorized by FERPA or federal law.

5. Amendment: 552.114 (slide 2 of 2)  Section 552.114(d) Except as provided by section (e), an educational institution may redact student record information without requesting a decision from the attorney general.  Section 552.114(e) If an applicant for admission to an educational institution or a parent or legal guardian of a minor applicant requests information in the record of the applicant, the educational institution shall disclose any information that:  Is related to the applicant’s application for admission; and  Was provided to the educational institution by the applicant.

6. Sample: FERPA and 552.114

7. Education record of a student withheld pursuant to FERPA [NOTE: In this example, the applicant is a student at the university. In accordance with FERPA, the GB/university did not submit this information for OAG review.]

8. Sample: FERPA and 552.114

9. Withhold 1 pg under 552.114(b)[NOTE: In this example, the GB/university explained the applicant is not a student at the university. Thus, the document is not subject to FERPA and the GB/university submitted it for our review.]

10.  Section 21.048(c-1) of the Education Code protects teacher examination results. The results of an examination administered under this section are confidential unless disclosure is regarding notification to a parent of the assignment of an uncertified teacher to a classroom as required by section 21.057 of the Education Code.  The 84th Legislature removed the language which required disclosure of the examination results if the educator had failed the examination more than five times. Amendment: 21.048 Educ. Code

11.  Section 21.062 of the Education Code The 84th Legislature added section 21.062 to the Education Code, which provides, in part: “(a) During an investigation by the commissioner [of education] of an educator for an alleged incident of misconduct, the commissioner may issue a subpoena to compel the production, for inspection or copying, of relevant evidence that is located in this state.” Section 552.0055 of the Government Code provides  “A subpoena duces tecum or a request for discovery that is issued in compliance with a statute or rule of civil or criminal procedure is not considered to be a request for information under [chapter 552 of the Government Code].” Amendment: 21.062 Educ. Code

12. Teacher Evaluations  Section 21.355 of the Education Code protects: A document evaluating the performance of a teacher or administrator

13. Sample: Teacher Evaluation

14. w/hold 1pg -- 552.101 with 21.355 Educ. Sample: Teacher Evaluation

15. College Transcripts  Section 552.102(b) of the Government Code protects: Information on a college transcript maintained in the personnel file of a professional public school employee, with the exception of the employee’s name, the courses taken, and the degree obtained, which must be released.

16. Sample: Teacher’s College Transcript

17. w/hold 1 pg. except name, courses, & degree -- 552.102(b) Sample: Teacher’s College Transcript

18. Criminal History Records (Slide 1 of 3)  Criminal History Record Information (“CHRI”) Chapter 411 of the Government Code authorizes the Texas Department of Public Safety (the “DPS”) to compile and maintain CHRI from law enforcement agencies throughout the state and to provide access to authorized persons to federal criminal history records.

19. Criminal History Records (Slide 2 of 3)  Section 411.097 of the Gov’t Code protects: CHRI obtained from DPS that relates to a district applicant or employee that a school district is required or authorized to obtain under subchapter C of chapter 22 of the Education Code.  Section 411.097 authorizes the release of CHRI: To the individual who is the subject of the information, To the Texas Education Agency, To the State Board for Educator Certification, To the chief personnel officer of the transportation company, if the information is obtained under subsection (a)(2), or By court order.

20. Criminal History Records (Slide 3 of 3)  Section 411.0845 of the Gov’t Code protects: CHRI obtained from the DPS clearinghouse and subscription service, which school districts are authorized to obtain pursuant to section 22.083(a-1) of the Education Code.

21. Social Security Numbers  552.024(a-1) and 552.147(a-1) of the Government Code Section 552.147(a-1) makes a district employee’s Social Security number confidential. Section 552.024(a-1) states a district may not require a current or former employee to choose whether to allow public access to the employee’s Social Security number. The Social Security numbers of current and former district employees are confidential and must be withheld under 552.147(a-1).

22. Audit Working Papers  Section 552.116 of the Gov’t Code protects: The audit working papers of an audit of a school district or institution of higher education, including any audit relating to the criminal history background check of a public school employee, or an audit authorized by a resolution or other action of a board of trustees of a school district.

23. Law Enforcement Records (Slide 1 of 3)  Section 552.108 of the Gov’t Code This section applies only to the interests of a law enforcement agency. A school district is not a law enforcement agency. However, section 552.108 can apply to the law enforcement records of a school district’s police department.

24. Law Enforcement Records (Slide 2 of 3)  Section 552.108(a)(1) excepts information that if released would interfere with a pending criminal case or prosecution.  Section 552.108(a)(2) applies to closed investigations that did not result in conviction or deferred adjudication.  Sections 552.108(a)(1) and 552.108(a)(2) are mutually exclusive. Do not raise both for the same information.

25. Law Enforcement Records (Slide 3 of 3)  Section 552.108 generally does not apply to personnel documents maintained by a school district for administrative purposes.  Section 552.108 is a discretionary exception that may be waived. However, a school district cannot waive another law enforcement agency’s claim under section 552.108.  Section 552.108(c) does not except basic information about an arrested person, an arrest, or a crime. See Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177, 186-88 (Tex. Civ. App.—Houston [14th Dist.] 1975); Open Records Decision No. 127 (1976) summarizing types of information considered to be basic information).

26. Juvenile Law Enforcement Records (Slide 1 of 5)  Section 58.007(c) of the Family Code protects: Law enforcement records of a child relating to delinquent conduct or conduct indicating a need for supervision that occurred on or after September 1, 1997. Only applies to a child suspect or offender who is at least 10 years old and under 17 years old at the time of the conduct. Only applies if the child is listed as a suspect or offender. It does not apply if the information only involves a child as a victim or witness.

27. Juvenile Law Enforcement Records (Slide 2 of 5)  “Delinquent conduct” Includes criminal acts, violations of court orders, and alcohol-related violations It generally does not include traffic offenses.  “Conduct indicating a need for supervision” Includes violations of ordinances, offenses punishable by fine only, and runaways

28. Juvenile Law Enforcement Records (Slide 3 of 5)  Pursuant to section 58.007(e), the school district may not withhold the law enforcement records of a child from the child, the child’s parents, or guardians. But before release…  Under section 58.007(j)(2), the school district can raise other exceptions to disclosure.  Under section 58.007(j)(1), the school district must withhold information about a child suspect, offender, victim, or witness who is not the child of the authorized requestor.

29. Juvenile Law Enforcement Records (Slide 4 of 5)  Section 51.14 of the Family Code protects: Law enforcement records of a child relating to delinquent conduct or conduct indicating a need for supervision that occurred before January 1, 1996.  Just like section 58.007(c) – Only applies to a child suspect or offender who is at least 10 years old and under 17 years old at the time of the conduct. The records must relate to “Delinquent conduct” or “Conduct indicating a need for supervision.”

30. Juvenile Law Enforcement Records (Slide 5 of 5)  Section 51.14 does not have a provision similar to section 58.007(e).  Records relating to conduct between January 1, 1996 and September 1, 1997 are not subject to either former section 51.14 or section 58.007.

31. Child Abuse/Neglect Records (Slide 1 of 3)  Section 261.201 of the Family Code protects: Reports of abuse or neglect of a child, and the identity of the person making the report. Records of an investigation of alleged child abuse or neglect made by an agency authorized to conduct a chapter 261 investigation.

32. Child Abuse/Neglect Records (Slide 2 of 3)  A school district is not an agency authorized to conduct a chapter 261 investigation. However, a school district’s police department is.  The child victim must be under the age of 18 at the time of the incident.  “Abuse” and “Neglect” are defined by section 261.001 of the Family Code.

33. Child Abuse/Neglect Records (Slide 3 of 3)  Section 261.201(k) provides child abuse records may not be withheld from the child victim’s parents if the parents are not the alleged perpetrators, or the child victim if he/she is now 18 years of age or older. But before release …  Section 261.201(l)(1) requires that the identifying information of other child victims or witnesses who are not children of the authorized requestor must be redacted.  Section 261.201(l)(3) requires the identifying information of the reporter of the child abuse or neglect must be redacted.  Under section 261.201(l)(2), the school district can raise other exceptions to disclosure.

34. 552.135 Informer’s Privilege (Slide 1 of 2)  Section 552.135 protects: The identity of a student or former student or an employee or former employee of a school district who furnished a report of a possible violation of criminal, civil, or regulatory law to the school district or the proper regulatory enforcement authority.

35. 552.135 Informer’s Privilege (Slide 2 of 2)  Individuals who provide information in the course of an investigation, but who do not make a report, such as interviewees, are not informers.  Section 552.135 does not apply if the informer consents to the release of his/her identity.  Section 552.135 does not apply if the informer planned, initiated, or participated in the possible violation.  You should clearly identify the informer as well as the specific law that is alleged to have been violated.

36. Sample: 552.135 Informer

37. WH informer name – 552.135 Sample: 552.135 Informer

38. Questions? OAG’s Open Government Hotline (877) OPEN-TEX (673-6839) (512) 478-OPEN (6736) OAG Website https://www.texasattorneygeneral.gov/og/open-government