ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

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July 19,2011

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Mr. W. Montgomery Meitler Assistant Counsel Office of Legal Services Texas Education Agency 1701 North Congress Avenue Austin, Texas 78701-1494 OR2011-10281 Dear Mr. Meitler: 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# 424343 (TEA PIR# 15283). The Texas Education Agency (the "agency") received a request for information from January 1, 2007, pertaining to completed audits and test security data regarding erasures on TAKS tests, including statewide, district-wide, administering school and administering teacher specified data.1 You indicate the agency will release some of the responsive information. You state the agency has redacted information pursuant to the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. 1232g(a).2 You claim that the

'We note the agency sought and received clarification of the information requested. See Gov't Code 552.222 (if request for information is unclear, governmental body may ask requestor to clarify request); see also Open Records Decision No. 31(1974) (when presented with broad requests for information rather than for specific records, governmental body may advise requestor of types of information available so that request may be properly narrowed). The United States Department of Education Family Policy Compliance Office (the "DOE") has informed this office that FERPA does not permit state and local educational authorities to disclose to this office, without parental consent, unredacted, personally identifiable information contained in education records for the purpose of our review in the open records ruling process under the Act. The DOE has determined that FERPA determinations must be made by the educational authority in possession of the education records. We have posted a copy of the letter from the DOE to this office on the Attorney General's website: http://www.oag.state.tx.us/open/2QQ6Q725usdoe.pdf
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submitted information is excepted from disclosure under sections 552.101, 552.116, and 552.122 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information,3 We have also considered comments submitted by the requestor. See Gov't Code 552.304 (interested party may submit written comments regarding availability of requested information). Initially, you state a portion of the responsive information was the subject of previous requests for information, as a result of which this office issued Open Records Letter Nos. 2011 -07545 (2011) and 2011 -07686 (2011). In those rulings, we determined the agency may withhold the information at issue pursuant to section 552.116 of the Government Code. We have no indication there has been any change in the law, facts, or circumstances on which the prior rulings were based. Accordingly, for the requested information that is identical to the information previously requested and ruled upon by this office, we conclude the agency may rely on Open Records Letter Nos. 2011 -07545 and 2011*07686 as previous determinations and withhold the identical information in accordance with those rulings. See Open Records Decision No. 673 (2001) (so long as law, facts, and circumstances on which prior ruling was based have not changed, first type of previous determination exists where requested information is precisely same information as was addressed in prior attorney general ruling, ruling is addressed to same governmental body, and ruling concludes that information is or is not excepted from disclosure). We will consider your arguments for the remaining information. Section 552.116 of the Government Code provides as follows: (a) An audit working paper of an audit of the state auditor or the auditor of a state agency, an institution of higher education as defined by Section 61.003, Education Code, a county, a municipality, a school district, a hospital district, or a joint board operating under Section 22.074, Transportation Code, including any audit relating to the criminal history background check of a public school employee, is excepted from [required public disclosure]. If information in an audit working paper is also maintained in another record, that other record is not excepted from [public disclosure] by this section. (b) In this section: (1) "Audit" means an audit authorized or required by a statute of this state or the United States, the charter or an ordinance of a municipality, an order of the commissioners court of a county, the bylaws adopted by or other action of the governing board of a hospital
We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office.
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district, a resolution or other action of a board of trustees of a school district, including an audit by the district relating to the criminal history background check of a public school employee, or a resolution or other action of a joint board described by Subsection (a) and includes an investigation. (2) "Audit working paper" includes all information, documentary or otherwise, prepared or maintained in conducting an audit or preparing an audit report, including: (A) intra-agency and interagency communications; and (B) drafts of the audit report or portions of those drafts. Act of May 29, 2011, 82nd Leg., R.S., H.B. 2947, 1, 2 (to be codified as amendments to Gov't Code 552.116(a) and (b)(l)). You state the submitted information consists of "audit working papers prepared or maintained by [the agency's] Student Assessment Division Security Task Force in conducting investigations of testing irregularities in the administration of statewide assessment instruments." You inform us the investigations "were authorized by section 39.057(a)(8) of the Education Code, which permits the [c]ommissioner of [education to authorize special accreditation investigations to be conducted in response to an allegation regarding or an analysis using a statistical method result indicating a possible violation of an assessment instrument security procedure." See Educ. Code 39.057 (listing circumstances in which the commissioner of education shall authorize investigations). Based on your representations and our review, we agree the information at issue constitutes audit working papers under section 552.116. Thus, the agency may withhold the information at issue pursuant to section 552.116 of the Government Code.4 In summary, with regard to the requested information that is identical to the information previously requested and ruled upon by this office, we conclude the agency may rely on Open Records Letter Nos. 2011-07545 and 2011-07686 as previous determinations and withhold the identical information in accordance with that ruling. The agency may withhold the information at issue under section 552.116 of the Government Code. This letter ruling is limited to the particular information 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 information or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/operi/index_orl.php.

our ruling is dispositive, we need not address your remaining arguments.

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or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free at (888) 672-6787. Sincerely,

Tamara H. Holland Assistant Attorney General Open Records Division THH/bs Ref: Enc.
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ID# 424343 Submitted documents

(w/o enclosures)