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B. W. B. v. Eanes Independent School District

Court of Appeals of Texas, Third District, Austin

January 10, 2018

B. W. B., Eanes Independent School District, Appellant//Cross-Appellant,
v.
Eanes Independent School District, B. W. B., Appellee//Cross-Appellee

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. D-1-GN-15-001653, HONORABLE KARIN CRUMP, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Field and Bourland

          MEMORANDUM OPINION

          Scott K. Field, Justice

         B.W.B. filed a petition for writ of mandamus in the trial court, seeking to compel Eanes Independent School District (EISD) to release documents under the Texas Public Information Act (TPIA).[1] See Tex. Gov't Code § 552.321(a). EISD filed a plea to the jurisdiction and a motion for summary judgment. The trial court denied the plea to the jurisdiction and granted the motion for summary judgment in part and denied the motion for summary judgment in part. B.W.B. now appeals the partial grant of summary judgment, and EISD cross-appeals the denial of the plea to the jurisdiction. We will affirm the trial court's judgment.

         BACKGROUND

         A dispute arose between B.W.B. and EISD concerning B.W.B.'s daughter's participation in EISD's soccer program. B.W.B. alleged that EISD coach Rennie Rebe bullied his daughter and shared her private information. He further alleged that EISD officials failed to effectively discipline Coach Rebe and encouraged the parents of other students to retaliate against B.W.B. because of this dispute. In 2011, B.W.B. requested records related to Coach Rebe from EISD. See id. § 552.021 (providing that public information is available to the public). Instead of producing all of the responsive documents, EISD requested an opinion from the Office of the Attorney General of Texas (OAG). See id. § 552.301(a) ("A governmental body that receives a written request for information that it wishes to withhold from public disclosure . . . must ask for a decision from the attorney general about whether the information is within that exception . . . ."). On July 7, 2011, OAG issued an opinion concluding that EISD must release certain documents to B.W.B. See Tex. Att'y Gen. Op. OR2011-09623.

         B.W.B.'s dispute with Coach Rebe continued, and on October 9, 2014, B.W.B. emailed her. The email was carbon copied to several other EISD email addresses and stated, "Please also do not discuss [B.W.B.'s daughter's] situation with any other students-if you do, I will immediately sue EISD for FERPA[2] violations." On October 13, B.W.B. filed another open records request under the TPIA. Then, on October 14, B.W.B. sent a letter to several EISD officials. This letter alleged that Coach Rebe's actions "violate FERPA, HIPPA, and EISD's Acceptable Use Guidelines for Technology." The letter also stated, "If it is necessary to file a lawsuit and to obtain an injunction to enjoin those actions, I am prepared to do so. I remain hopeful, however, that legal action will not be necessary."

         On October 16, B.W.B. submitted a formal "Notice of Complaint" against Coach Rebe, alleging, among other things, that she violated FERPA and harassed his daughter. This Notice initiated "Level One" of the EISD grievance process. On November 10, EISD responded to B.W.B. In its letter, EISD stated that it did not find any evidence that Coach Rebe had harassed B.W.B.'s daughter. However, the letter also stated that EISD would remind the coach of EISD's policies. B.W.B. appealed this response, filing a "Level Two" complaint.

         Although EISD released a number of records to B.W.B. in response to his October 13, 2014 request, it withheld certain documents and sought an OAG opinion regarding their release. On January 9, 2015, OAG issued its decision. In its opinion, OAG explained that the United States Department of Education (DOE) has informed OAG that FERPA "does not permit state and local educational authorities to disclose to [OAG], without parental or an adult student's consent, unredacted, personally identifiable information contained in education records for the purpose of [OAG's] review in the open records ruling process." Tex. Att'y Gen. Op. OR2015-00433. OAG further stated the following:

We note the requestor is a parent of one of the students to whom some of the submitted information pertains. Because our office is prohibited from reviewing these education records to determine the applicability of FERPA, we will not address the applicability of FERPA to any of the submitted records, other than to note that parents have a right of access under FERPA to their own child's education records and their right of access prevails over exceptions under sections 552.103, 552.117, and 552.137 of the Government Code. Such determinations under FERPA must be made by the educational authority in possession of the education records. The DOE also has informed our office, however, a parent's right of access under FERPA to information about the parent's child does not prevail over an educational institution's right to assert the attorney-client privilege. Therefore, we will address your assertion of the attorney-client privilege under section 552.107 of the Government Code to the submitted information. We will also consider the district's claimed exceptions to the extent the requestor does not have a right of access to the submitted information under FERPA.

Id. (citations and footnote omitted).

         The OAG opinion then discussed the litigation exception to the release of records under the TPIA. See Tex. Gov't Code § 552.103. The opinion described EISD's complaint process as EISD represented that process to OAG in its request for a decision. The opinion also stated that, according to EISD, the requestor "informed [EISD] he intended to file a formal complaint with [EISD] regarding a dispute with the named district employee and instructed the named employee not to have contact with his child or discuss the dispute with other students or he would file suit against [EISD]." Tex. Att'y Gen. Op. OR2015-00433. OAG then determined that the litigation exception applied to the documents that EISD withheld:

Based on your representations, we find you have demonstrated the district's administrative procedures for parent grievances are conducted in a quasi-judicial forum, and thus, constitute litigation for purposes of section 552.103. Further, we find the district reasonably anticipated litigation on the date it received the request for information and the submitted information relates to the anticipated litigation. Accordingly, the district may withhold the submitted information under section 552.103 of the Government Code.

Id. (footnote omitted). OAG further noted, "If the requestor does not have a right of access to the submitted information under FERPA, this determination is dispositive of your remaining arguments against disclosure." Id. The OAG opinion then went on to discuss the attorney-client privilege. See Tex. Gov't Code § 552.107(1). OAG determined that EISD had "demonstrated the applicability of the attorney-client privilege to the information at issue, " although "one of the e-mail strings at issue" was subject to possible release. See Tex. Att'y Gen. Op. OR2015-00433.

          The OAG opinion concluded the following:

In summary, to the extent the district determines the submitted information does not constitute student records to which the requestor, as a parent of one of the students at issue, has a right of access under FERPA, the district may withhold the submitted information under section 552.103 of the Government Code. To the extent the district determines the submitted information does constitute student records to which the requestor has a right of access under FERPA, the district may withhold the information in Exhibit C under section 552.107(1) of the Government Code and must release the remaining information.

Id.

         B.W.B. filed further records requests on November 25, 2014, January 13, 2015, and April 15, 2015. Then, on April 27, 2015, he filed his original petition in this case. In his later amended petition, B.W.B. sought a writ of mandamus directing EISD to provide the records he had requested under the TPIA. See Tex. Gov't Code § 552.321(a). He also sought an order directing EISD to prepare and provide a privilege log "and to produce the records withheld to the Court for in camera inspection and ruling." B.W.B. requested attorney's fees under the TPIA. See id. § 552.323(a). Finally, B.W.B. asked for an order "authorizing the taking of depositions on oral examination in order to investigate a potential claim or suit." See Tex. R. Civ. P. 202.[3]

         EISD voluntarily produced a privilege log. It also filed a combined plea to the jurisdiction and motion for summary judgment. After holding a hearing, the trial court signed a final judgment denying EISD's plea to the jurisdiction. The court also granted EISD's motion for summary judgment in part "on the grounds that: (1) EISD's administrative grievance process is 'litigation' for purposes of Texas Government Code § 552.103, and (2) EISD reasonably anticipated litigation to satisfy the 'litigation exception' under Texas Government Code § 552.103." However, the court denied EISD's motion for summary judgment in part, ruling that certain enumerated documents "do not satisfy the requirements of the 'litigation exception' under Texas Government Code § 552.103 and shall be disclosed to Plaintiff B.W.B. (with redactions for any FERPA information not regarding B.W.B. or his child)." Finally, the court granted EISD's motion for summary judgment in part "on the grounds that there is no ...


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