Court of Appeals of Texas, Third District, Austin
B. W. B., Eanes Independent School District, Appellant//Cross-Appellant,
Eanes Independent School District, B. W. B., Appellee//Cross-Appellee
THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-15-001653, HONORABLE KARIN CRUMP, JUDGE PRESIDING
Chief Justice Rose, Justices Field and Bourland
K. Field, Justice
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). 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
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.
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 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
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.
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).
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.
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.
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.
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 ...