Untitled Texas Attorney General Opinion

OFFKE OF THE ATTORNEY GENERAL. STATE OP TEXAS

JOHN CORNYN

January 22,200l

Mr. Jim Nelson Opinion No. X-0333
Commissioner of Education
Texas Education Agency Re: Whether section 323.019 of the Government
1701 North Congress Avenue Code authorizes the Texas Education Agency to
Austin, Texas 78701-1494 release to the Texas Legislative Council student
information that is confidential under federal law
(RQ-0312-JC)

Dear Commissioner Nelson:

The Texas Education Agency (“TEA”) possesses personally identifiable information from
education records that is confidential under federal law, the Family Educational Rights and Privacy
Act of 1974,20 U.S.C. 5 1232g (1994 & Supp. IV 1998) (“FERPA”). FERPA allows release of
such personally identifiable information without parental consent only under certain circumstances,
including for example, to state and local education authorities for certain purposes. Section 323.019
of the Govermnent Code provides that employees of the Texas Legislative Council are state school
officials for purposes ofFERPA. You ask whether that state statute authorizes the Texas Education
Agency to release to the Texas Legislative Council personally identifiable information that is
confidential under FERPA. We conclude that it does not.

Before turning to FERPA’s provisions governing release of education records, we begin with
a brief discussion of the Texas Legislative Council and section 323.019. Pursuant to chapter 323
ofthe Government Code, the Texas Legislative Council (the “Council”), an agency ofthe legislative
branch of state government, consists of the Lieutenant Governor, the Speaker of the House of
Representatives, the chairs of the Senate and House administration committees, four additional
Senators, and nine additional members of the House. See TEX. GOV’T CODE ANN. 5 323.001(a)
(Vernon 1998). Among other duties, the Council is charged with studying and investigating the
functions and problems of state agencies, conducting studies for the legislative branch, gathering and
disseminating information for the legislature’s use, and providing data-processing services to aid
members and legislative committees in accomplishing their legislative duties. See id. § 323.006.
Chapter 323 authorizes the Council to inspect and copy records in connection with hearings and to
issue subpoenas to compel the production ofrecords. See id. $5 323.010, .Ol 1.

Section 323.019 of the Government Code, which was enacted in 1999,’ provides that the
Council may “gather and analyze information relating to public education and other public services

‘See Act of May 18, 1999,76th Leg., RX, ch. 1X%,$2, 1999 Tex. Gen. Laws 5436
Mr. Jim Nelson - Page 2 (X-0333)

for the purpose of conducting statistical and demographic research and producing reports.” Id.
§ 323.019(a) (Vernon Supp. 2000). It requires state agencies to provide information to the Council
“to the maximum extent permitted by state or federal law.” Id. 4 323.019(b). Subsection (c) of
section 323 .O19 provides that the Council is entitled “to collect data from any state agency, including
data that is confidential under state or federal law,” id. § 323.019(c), “[i]n order to develop and
evaluate legislative policy,” id. Significantly, it also provides that “[flor the limited purpose of
collecting and matching data subject to 20 U.S.C. Section 1232g [FERPA] or other federal law
governing education records, employees of the council are considered state school officials.” Id.

FERPA protects “education records” maintained by “an educational agency or institution,”
a term that includes any public or private agency or institution that receives federal funding. See 20
U.S.C. 5 1232g(a)(3) (1994). “Education records” is broadly defined in FERPA to include records,
files, documents and other materials maintained by an educational agency or institution that contain
information directly related to a student. See id. 5 1232g(a)(4)(A). Student “directory information,”
information such as a student’s name, address, telephone number, date ofbirth, and extracurricular
activities, is subject to lesser protections. See id. 5 1232g(a)(5)(A) (defining “directory
information”); (B) (special provisions allowing release of directory information after notice). The
term “student” includes any person for whom an educational agency or institution maintains
education records or personally identifiable information, but does not include a person who has not
been in attendance at such agency or institution. See id. 5 1232g(a)(6).

FERPA provides that federal funding for education will not be made available to an
educational agency or institution that has a policy or practice of releasing “education records (or
personally identifiable information contained therein other than directory information . ) of
students without the written consent oftheir parents to any individual, agency, or organization, other
than” certain specified entities in certain limited circumstances. Id. 5 1232g(b)(l); see also Klein
Indep. Sch. Dist. v. Muttox, 830 F.2d 576, 579 (5th Cir. 1987). A number of FERPA’s exceptions
to the general rule prohibiting disclosure of student records without parental consent allow release
of information to school officials. Section 1232g(b)( 1) of FERPA permits the release of personally
identifiable student information without parental consent to:

(A) other school officials, including teachers within the
educational institution or local educational agency, who have been
determined by such agency or institution to have legitimate
educational interests, including the educational interests of the child
for whom consent would otherwise be required;

(B) officials of other schools or school systems in which the
student seeks or intends to enroll, upon condition that the student’s
parents be notified of the transfer, receive a copy of the record if
desired, and have an opportunity for a hearing to challenge the
content of the record;
Mr. Jim Nelson - Page 3 (X-0333)

(C) (i) authorized representatives of (I) the Comptroller General
of the United States, (II) the Secretary [of Education], or (III) State
educational authorities, under the conditions set forth in paragraph
(3), or (ii) authorized representatives of the [United States] Attorney
General for law enforcement purposes under the same conditions as
apply to the Secretary under paragraph (3);

m connection with a student’s application for, or receipt of,
Ilnafn?al aid;

(E) State and local officials or authorities to whom such
information is specifically allowed to be reported or disclosed
pursuant to State statute adopted-

(i) before November 19, 1974, if the allowed reporting or
disclosure concerns the juvenile justice system and such system’s
ability to effectively serve the student whose records are released, or

(ii) after November 19, 1974, if-

(1) the allowed reporting or disclosure concerns the juvenile
justice system and such system’s ability to effectively serve, prior to
adjudication, the student whose records are released; and

(II) the officials and authorities to whom such information
is disclosed certify in writing to the educational agency or institution
that the information will not be disclosed to any other party except as
provided under State law without the prior written consent of the
parent of the student.

(F) organizations conducting studies for, or on behalf of,
educational agencies or institutions for the purpose of developing,
validating, or administering predictive tests, administering student aid
programs, and improving instruction, if such studies are conducted in
such a manner as will not permit the personal identification of
students and their parents by persons other than representatives of
such organizations and such information will be destroyed when no
longer needed for the purpose for which it is conducted;

(G) accrediting organizations in order to carry out their
accrediting functions;
Mr. Jim Nelson - Page 4 (X-0333)

(II) parents of a dependent student of such parents, as defined in
section 152 of Title 26;

(I) subject to regulations of the Secretary, in comiection with an
emergency, appropriate persons ifthe knowledge of such information
is necessary to protect the health or safety of the student or other
persons; and

(J) (i) the entity or persons designated in a Federal grand jury
subpoena, in which case the court shall order, for good cause shown,
the educational agency or institution (and any officer, director,
employee, agent, or attorney for such agency or institution) on which
the subpoena is served, to not disclose to any person the existence or
contents of the subpoena or any information furnished to the grand
jury in response to the subpoena; and

(ii) the entity or persons designated in any other subpoena
issued for a law enforcement purpose, in which case the court or other
issuing agency may order, for good cause shown, the educational
agency or institution (and any officer, director, employee, agent, or
attorney for such agency or institution) on which the subpoena is
served, to not disclose to any person the existence or contents of the
subpoena or any information furnished in response to the subpoena.

.

20 U.S.C. $ 1232g@)(l)(A)-(J) (1994 & Supp. IV 1998) (emphasis added). In addition, release of
student information is not prohibited if there is written consent or in compliance with ajudicial order
or subpoena, if the parents and students are notified of the order or subpoena in advance of the
educational institution or agency’s compliance. See id. 5 1232g(b)(2)(B) (1994).

Before turning to your specific question, we briefly examine the legal status of the
information at issue. You inform us that TEA has received personally identifiable student
information from Texas school districts pursuant to section 42.006 of the Education Code.* See
TEX. EDUC. ;CODE ANN. 5 42.006 (Vernon 1996) (establishing Public Education Information
Management System). TEA’s general counsel informs us that school districts disclose personally
identifiable student information to the TEA without parental consent pursuant to subsections

2.See Letter from Jim Nelson, Commissioner of Education, to Honorable John Comyn, Texas Attorney General
at 3 n.5 (Jan. 7,200O) [hereinafter Request Letter] attached to Letter from David A. Anderson, General Counsel, Texas
Education Agency, to Honorable John Comyn, Texas Attorney General (Nov. 14, 2000) (on tile with Opinion
Committee).
Mr. JimNelson - Page 5 (JC-0333)

(b)(l)(C), (b)(3), and (b)(5) ofFERPA: provisions which, as we will discuss in greater detail below,
allow state educational authorities access to records that may be necessary “in connection with the
audit and evaluation of any federally or State supported education program,” 20 U.S.C. §
1232g(b)(5) (1994); see also 34 C.F.R. 5 99.35 (2000). The United States Department ofEducation
rules implementing FERPA provide that an educational agency or institution may disclose
information with the understanding that the party receiving the information may make further
disclosures of the information, but only if the disclosures are authorized under FERPA. See 34
C.F.R. 3 99.33(b) (2000). Thus, TEA’s authority to re-disclose information it has received from
school districts is also subject to FERPA’s limitations on disclosure.

We further note that TEA is an educational agency or institution subject to FERPA’s funding
penalty for unauthorized release of information, see 20 U.S.C. 5 1232g(b)(l) (1994), even though
it does not directly enroll students. FERPA defines the term “educational agency or institution” to
include any public or private agency or institution that receives federal funding under an applicable
education program, without regard to whether it enrolls students. See id. $ 1232g(a)(3). And,
significantly; the Department of Education rules indicate that a state agency like TEA that receives
federal education funding and has jurisdiction over public elementary and secondary educational
institutions is an educational agency or institution subject to FERPA. See 34 C.F.R. 5 99.1(a) (2000)
(defining educational agency or institution to include “an educational agency or institution to which
funds have been made available under any program administered by the Secretary [of Education],
if- (1) The educational institution provides educational services or instruction, or both, to students;
or (2) The educational agency is authorized to direct and control public elementary or secondary,
or postsecondary educational institutions.“) (emphasis added). We understand that TEA receives
federal education funding.4

We now turn to your specific question. Again, section 323.019 of the Government Code
provides that employees of the Texas Legislative Council are “considered state school officials” for
purposes of FERPA. TEX. GOV’T CODEANN. 5 323.019(c) (Vernon Supp. 2000). Thus, we must
consider whether section 323.019 authorizes the TEA to release personally identifiable student
information to Texas Legislative Council employees under one of FERPA’s exceptions to
nondisclosure. In quoting subsection (b)(l)(A)-(J) of FERPA above, we have emphasized the
exceptions to nondisclosure that allow release of information to school officials. In construing these
provisions, we are aided by interpretive regulations promulgated by the United States Department
of Education, 34 C.F.R. pt. 99 (2000). Furthermore, given that release of information in violation
ofFERPAcouldjeopardizeTEA’sfederalftmding,see20U.S.C. 5 1232g(b)(1)(1994),weinterpret
the FERPA provisions authorizing release of information without parental consent narrowly. We
conclude that none of these provisions authorizes the release of information to Texas Legislative
Council employees, even though they are considered “state school officials” for purposes of Texas
law.

‘Telephone Conversation withDavid A. Anderson, General Counsel, Texas EducationAgency(Dec. 2 1,200O).
Mr. Jim Nelson - Page 6 (JC-0333)

Subsection (b)(l)(A) allows release of information to “other school officials, including
teachers within the educational institution or local educational agency, who have been determined
by such agency or institution to have legitimate educational interests, including the educational
interests of the child for whom consent would otherwise be required.” Id. 5 1232g@)(l)(A). This
provision appears to contemplate release of information to other school officials at the local level,
i.e. within the student’s school and school district, rather than to school officials at the state level.
A Department of Education rule confirms this reading, permitting disclosure “to other school
officials, including teachers, within the agency or institution whom the agency or institution has
determined to have legitimate educational interests.” 34 C.F.R. 5 99.31(a)(l) (2000).

Subsection (b)(l)(C) allows the release of information to “[sltate educational authorities,
under the cdnditions set forth in paragraph (3).” 20 U.S.C. 5 1232g(b)(l)(C) (Supp. IV 1998).
Subpart (3) of subsection (b) permits the release of information to state education authorities to the
extent “necessary in connection with the audit and evaluation of Federally-supported education
programs, or in connection with the enforcement of the Federal legal requirements which relate to
such programs.” Id. 5 1232g(b)(3) (1994). In addition, subpart (5) of subsection (b) provides that
nothing in FERPA’s prohibitions against disclosure “shall be construed to prohibit State and local
educational officials from having access to student or other records which may be necessary in
connection with the audit and evaluation of any federally or State supported education program.”
Id. 5 1232g(b)(5). The Department of Education rule on disclosure to “state and local educational
authorities” provides that such officials “may have access to education records in connection with
an audit or evaluation of Federal or State supported education programs, or for the enforcement of
or compliance with Federal legal requirements which relate to those programs.” 34 C.F.R. 5
99.35(a) (2000). Again, section 323.019 of the Government Code contemplates the use of
information “to develop and evaluate legislative policy.” TEX. GOV’T CODE ANN. 5 323.019(c)
(Vernon Supp. 2000). Subsection (b), subparts (3) and (5) of FERPA, and the federal rule, in
permitting release of information for the “audit and evaluation of any federally or State supported
educationprogram,“20U.S.C. 5 1232g(b)(5) (1994), appearto contemplatethe audit andevaluation
of specific existing programs. Development and evaluation of state legislative policy generally is
not a purpose for which the federal provisions permit the release of information.

Subsection (b)(l)(E) provides for the release of information to state and local offkials or
authorities to whom such information is specifically allowed to be reported or disclosed pursuant
to state statute “if the allowed reporting or disclosure concerns the juvenile justice system and
such system’s ability to effectively serve the student whose records are released.” Id.
9 1232g(b)(l)(E). As section 323.019 ofthe Government Code provides for the use of information
“to develop and evaluate legislative policy,” TEX. GOV’T CODE ANN. 5 323.019(c) (Vernon Supp.
2000), and does not specifically provide for the disclosure ofthe information with respect to juvenile
justice matters, we do not believe that subsection(b)(l)(E) authorizes the TEA to release information
to Texas Legislative Council employees.

In suin, we conclude that FERPA does not permit the TEA to release personally identifiable
student information to employees of the Texas Legislative Council without consent despite the fact
Mr. JimNelson - Page 7 (X-0333)

that section 323.019 of the Government Code provides that such employees are “state school
officials” for purposes of that federal law. We note, however, that in enacting FERPA, Congress
delegated authority to enforce it to the United States Secretary of Education. The Department of
Education rules in turn provide that the Secretary has designated the Family Policy Compliance
O&e of the United States Department of Education to provide technical assistance to ensure
compliance with the Act. See 34 C.F.R. 5 99,60(b)(2) (2000). The Family Policy Compliance
Office issues advisory opinions to educational agencies and institutions regarding release of
information under FERPA. TEA has requested the advice ofthat office on the question raised in this
request.5 Should the Family Policy Compliance Office advise the TEA that it may release personally
identifiable student information to the Texas Legislative Council pursuant to section 323.019 ofthe
Government Code or any other law, that advice would prevail over this opinion. We stress that this
office must construe FERPA’s exceptions to nondisclosure narrowly given the potential
consequences of violating the Act for TEA’s federal funding, see 20 U.S.C. 5 1232g(b)(l) (1994).
While TEA funding might be jeopardized if it relied on an opinion of this office that interpreted an
exception to nondisclosure broadly, TEA would not have the same concerns in relying on the advice
of the Family Policy Compliance Office, an office of the federal agency charged with enforcing
FERPA.

‘See Request Letter, supra note 2, at 2,3 n.9.
Mr. Jim Nelson - Page 8 (JC-0333)

SUMMARY

The federal Family Educational Rights and Privacy Act of
1974,20 U.S.C. 5 1232g (1994 & Supp. IV 1998), does not permit
the Texas Education Agency to release personally identifiable student
information to employees of the Texas Legislative Council without
consent despite the fact that section 323.019 ofthe Government Code
provides that such employees are “state school officials” for purposes
of that federal law.

JOtiN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee