KBS Reference Desk: TPIA

Q:      A parent recently emailed one of my campus principals asking for the most recent evaluation of her child’s teacher. This parent has accused the teacher of rough handling her child in the past, and I believe that she is digging for information that may support a complaint against the teacher. I know the teacher’s evaluation is confidential by law – do I even have to respond to this request?

A:      Yes. Under the Texas Public Information Act (TPIA), any written request for information or documents from a governmental body triggers the Act’s requirements. If a governmental entity believes the documents are confidential, it must request an opinion from the Attorney General’s office before withholding the information from public disclosure. Very few exceptions apply to this general rule.    

The Public Information Act, found in Chapter 552 of the Texas Government Code, applies when an individual submits a written request for government records to a governmental body. The legislature has amended the Act to explicitly include e-mail as an acceptable medium of making a request. Tex. Gov’t Code 552.301(c). A public school district is, of course, a governmental entity of the State that is subject to the Act’s requirements. The individual’s request, to be valid, must seek records or documents that currently exist; thus, a governmental body is not required to create new information, research, or answer questions.

In instances where the document requested is confidential by law, or appears to fall within one of the numerous exceptions to disclosure identified in the statute, section 552.301 of the Government Code requires that the district seek an Attorney General Decision within ten (10) business days of its receipt of the request. This 10 day letter must identify the exceptions to disclosure from the Act that the district believes apply. Within 15 days of receipt of the request, the district must submit to the Attorney General argument and authority supporting its rationale for why the stated exceptions apply. With this 15 day letter, the district must submit copies of the information requested or, at least, “representative samples” of the information if voluminous.  Your school district’s attorney will be helpful in determining what information is excepted from disclosure under the Act and can aide in drafting the necessary letters and legal arguments to the Attorney General’s office.

Of critical importance, note that failure to request an opinion within the 10 and 15 day timelines, even if missed by only one minute, will trigger a ruling that the district waived the exception and result in the information being deemed public. Keep in mind, however, mandatory exceptions, which protect from public disclosure information that a governmental body is prohibited from releasing, are not waivable and will not require release of a confidential document despite a missed deadline. This includes any information considered confidential by law, including judicial decisions, and any information that will affect the rights of a third party.

Finally, in some limited instances, a governmental entity is permitted to redact information without the determination of the Attorney General. However, this authority is limited to certain account numbers and personal employee information with a proper election under the statute. Similarly, information protected under FERPA and social security numbers can be withheld or redacted without a determination from the Attorney General.  In these instances, notice must be provided to the requestor outlining the type of information withheld and the requestor’s right to appeal the school district’s determination to the Attorney General.

Your Board Policy GB Series (GB, GBA, and GBAA) provides information on responding to request and requesting Attorney General opinions. The Attorney General’s Public Information Handbook (the most recent version is 2016) also provides guidance, and can be found at the following address:

https://www.texasattorneygeneral.gov/files/og/publicinfo_hb.pdf.

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