Lena Silva

Must Disclose or May Withhold: A FERPA and Texas PIA Trainwreck The Texas Supreme Court has granted a petition for review filed by the University of Texas (UT) in a case involving intersecting provisions of the Family Educational Rights and Privacy Act (FERPA) and the Texas Public Information Act (PIA). The case centers on student disciplinary records sought by the Austin American-Statesman (Statesman) newspaper. It will be interesting to see how this turns out. In 2019, the Statesman sent UT a PIA request, seeking years of records concerning disciplinary hearings against students who were "alleged perpetrator[s] of any crime of violence or a non-forcible sex offense" and where UT determined the student violated applicable UT rules. FERPA provides "nothing in this section shall be construed to prohibit an institution . . . from disclosing the final results of any disciplinary proceeding" involving these types of crimes or offenses. (20 USC 1232g(b)(6)(B)). The Statesman's request closely mirrored FERPA's language. The Texas PIA (Section 552.114(b)) provides "Information is confidential and excepted from [disclosure] if it is information in a student record. This subsection does not prohibit the disclosure . . . of information included in an education record if the disclosure is authorized by [FERPA]". In most cases, the PIA requires a gov't entity to seek a Texas Attorney General opinion on the matter within 10 days. UT did not seek an AG opinion and, 17 days after receiving the Statesman's request, emailed the Statesman, stating UT would not release the requested records because nothing in FERPA required it to do so. The Statesman filed suit in Travis County District Court and prevailed. UT appealed (Eighth Court of Appeals, El Paso), arguing that even though FERPA (and the PIA) does not PROHIBIT disclosure of the requested student records, neither law REQUIRES disclosure. The Court of Appeals disagreed and, following a lengthy statutory construction analysis, concluded the language and structure of 552.114(b) does not describe a permissive exception, therefore UT was required to provide the requested records. The court also took issue with UT's failure to timely request an AG opinion. Broadly speaking, the PIA provides gov't entities with 2 types of exceptions to disclosure: mandatory exceptions (confidential by law, must not disclose) and permissible exceptions (may disclose, but not required to). It also imposes some fairly significant penalties for parties who fail to meet certain deadlines and procedural requirements (including seeking an AG opinion in many cases). On Friday, the Texas Supreme Court granted UT's petition for review. UT maintains its disclosure of the requested records is discretionary under both FERPA and the PIA. Regardless of how this case is resolved, it serves as a reminder: a) watch those PIA deadlines like a hawk; and b) err on the side of caution in seeking an AG opinion.

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