School District Records Lindsay Hale David Wheelus Assistant Attorneys General Open Records Division...

School District Records

Lindsay Hale David Wheelus

Assistant Attorneys GeneralOpen 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

Education Records (slide 1 of 2)

Education Records

Section 1232g of Title 20 of the United States CodeThe 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.

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.

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.

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.

Sample: FERPA and 552.114

CRYSTAL SKULL STATE UNIVERSITY at AUSTIN APPLICATION FOR ADMISSION: Part I

Legal Name: Henry Walton Jones III Preferred Name: Mutt Date of Birth: October 21, 1938 Age: 17 SSN: 101-10-0101 Home Address: 123 Motorcycle Drive, Rebel, TX 70000 Telephone: (512) 555-1234 E-Mail: [email protected] Application for: Year: 1955 Fall Spring Summer Father’s Occupation: Archaeologist and History Teacher Father’s Education Level: B.A. Mother’s Occupation: Bar Owner Mother’s Education Level: High School

Signature of Applicant: Mutt Jones


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.]





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.]

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

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

Teacher Evaluations

Section 21.355 of the Education Code protects:

• A document evaluating the performance of a teacher or administrator

Marshall Independent School District EMPLOYEE EVALUATION

Employee: Henry “Indiana” Jones, Jr. Position: History Teacher Reviewer: Marcus Brody, Principal Date: April 1, 2015 Excellent Good Fair Poor Attendance X Attitude X Communication Skills X Creativity X Dependability X Enthusiasm X Punctuality X Work Quality X Work Consistency X Work Relations X Comments: Jones is an engaging teacher and is clearly passionate about his subject. However, while his experience in the field clearly makes his lessons more interesting and approachable for students, his frequent absences have become a problem.

Sample: Teacher Evaluation

w/hold 1pg --552.101 with 21.355 Educ.

Marshall Independent School District EMPLOYEE EVALUATION

Employee: Henry “Indiana” Jones, Jr. Position: History Teacher Reviewer: Marcus Brody, Principal Date: April 1, 2015 Excellent Good Fair Poor Attendance X Attitude X Communication Skills X Creativity X Dependability X Enthusiasm X Punctuality X Work Quality X Work Consistency X Work Relations X Comments: Jones is an engaging teacher and is clearly passionate about his subject. However, while his experience in the field clearly makes his lessons more interesting and approachable for students, his frequent absences have become a problem.

Sample: Teacher Evaluation

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.

University of Chicago

Name: Henry “Indiana” Jones, Jr. GPA: 4.0

Degree: B.A. Linguistics Hours: 48

Fall 1920

World History A

World Religion A

Latin A

Air Pilot 101 A

Spring 1921

Archeology A

Cryptology A

Ophiology Drop

Haberdashery Pass

Fall 1921

Biblical Studies A

Greek A

Wilderness Survival Pass

Middle Eastern Studies A

Spring 1922

Anthropology A

Bull Whips for Beginners Pass

German A

Spelunking Pass

Sample: Teacher’s College Transcript

w/hold 1 pg. except name, courses, & degree --552.102(b)

University of Chicago

Name: Henry “Indiana” Jones, Jr. GPA: 4.0

Degree: B.A. Linguistics Hours: 48

Fall 1920

World History A

World Religion A

Latin A

Air Pilot 101 A

Spring 1921

Archeology A

Cryptology A

Ophiology Drop

Haberdashery Pass

Fall 1921

Biblical Studies A

Greek A

Wilderness Survival Pass

Middle Eastern Studies A

Spring 1922

Anthropology A

Bull Whips for Beginners Pass

German A

Spelunking Pass

Sample: Teacher’s College Transcript

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.


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.


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.

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).

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.

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.


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.


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).

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.


“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


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.


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.”


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.

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.


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.


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.

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.

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.

Marshall Independent School District

On April 24, our school was hosting a History Fair in cooperation with the local museum. The museum kindly brought along some priceless artifacts for its display. The cafeteria was buzzing with students and teachers partaking in the educational festivities.

Mr. Jones approached me this afternoon to report that he saw Mr. Rene Belloq running out of the cafeteria with a priceless artifact in his hands, no doubt worth millions. Upon hearing this news, I went straight to the cafeteria to investigate. I spoke to a few of the teachers who were present at the time. Mr. Sallah and Ms. Marion Ravenwood both confirmed seeing Mr. Rene Belloq frantically running away with an artifact in his hands. Ms. Elsa Schneider said she saw nothing out of the ordinary. A few minutes later, Mr. Rene Belloq was apprehended by district police with the stolen good in his possession.

This is a true and accurate recollection of the events from that day.

Marcus Brody

Principal


Sample: 552.135 Informer


On April 24, our school was hosting a History Fair in cooperation with the local museum. The museum kindly brought along some priceless artifacts for its display. The cafeteria was buzzing with students and teachers partaking in the educational festivities.

Mr. Jones approached me this afternoon to report that he saw Mr. Rene Belloq running out of the cafeteria with a priceless artifact in his hands, no doubt worth millions. Upon hearing this news, I went straight to the cafeteria to investigate. I spoke to a few of the teachers who were present at the time. Mr. Sallah and Ms. Marion Ravenwood both confirmed seeing Mr. Rene Belloq frantically running away with an artifact in his hands. Ms. Elsa Schneider said she saw nothing out of the ordinary. A few minutes later, Mr. Rene Belloq was apprehended by district police with the stolen good in his possession.

This is a true and accurate recollection of the events from that day.

Marcus Brody

Principal


WH informer name – 552.135

Sample: 552.135 Informer

Questions?

OAG’s Open Government Hotline(877) OPEN-TEX (673-6839)

(512) 478-OPEN (6736)

OAG Websitehttps://www.texasattorneygeneral.gov/og/open-government

School District Records Lindsay Hale David Wheelus Assistant Attorneys General Open Records Division...

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