KBS Reference Desk: Evaluation Confidential

Q:       We proposed a teacher for nonrenewal last night. Today, I received a request from the local newspaper for the notice of proposed nonrenewal letter “and all documentation supporting the superintendent’s recommendation, including the most recent evaluation instrument.” Do I really have to produce all of this stuff?

A:        Yes and no. While the notice letter is likely public information, the evaluation of the teacher and any other document, including a reprimand that “evaluates, as that term is commonly understood, a teacher” or “reflects the principal’s judgment regarding [a teacher’s] actions, gives corrective direction, and provides for further review” is confidential pursuant to section 552.101 of the Texas Government Code, encompassing section 21.355 of the Texas Education Code.  Tex. Att’y Gen. OR2018-05036.

The Texas Education Code provides that “a document evaluating the performance of a teacher or administrator is confidential and is not subject to disclosure under Chapter 552, Government Code.”  TEC §21.355.  The Attorney General has determined a ‘teacher’ for purposes of section 21.355 means a person who (1) is required to and does in fact hold a teaching certificate under subchapter B of chapter 21 of the Education Code or a school district teaching permit under section 21.055 and (2) is engaged in the process of teaching, as that term is commonly defined, at the time of the evaluation. As such, the evaluation instrument requested in the hypothetical above would be confidential and not subject to disclosure. All other documents within the employee’s personnel file must be assessed independently for a determination of whether it “reflects the principal’s judgment . . . gives corrective direction . . . and provides for further review.” If the answer is yes, then the document, even though not titled an evaluation, would likely be deemed confidential. Most reprimands, as well as T-TESS Goal Setting and Professional Development Plans and/or traditional growth plans would likely fall within this category.

Keep in mind, however, that a determination regarding confidentiality must be made by the Texas Attorney General. A school district cannot simply refuse to produce what it believes to be excepted from disclosure under the Act. Rather, the district must seek an opinion from the Attorney General within 10 business days of its receipt of the request. The 10-day letter must identify the exceptions to disclosure from the Act that the district believes apply (here, Tex.Gov’t Code §551.101 and TEC §21.355). Within 15 business days of the receipt of the request, the district must submit to the Attorney General argument and authority supporting the district’s rationale for why the stated exceptions apply, and representative samples of the documents requested.

As timelines and assertion of appropriate authority are critical to preserving confidentiality, our best advice is to seek the assistance of your school district’s attorney, who can aide in drafting the necessary letters and legal arguments to the Attorney General’s office.

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