You Can Do It! Redactions Under the
Public Information Act

By April Philley, Associate

Eichelbaum Wardell Hansen Powell & Mehl, P.C.

The Texas Public Information Act (the “PIA”) gives members of the public the right to request access to government information. While the requested information is presumed public, the PIA provides exceptions to disclosure. These exceptions fall into two main categories: those that require a ruling from the Office of the Attorney General and those that allow the governmental body to make redactions on its own. The most common of the exceptions you can apply on your own are FERPA (Family Educational Rights and Privacy Act) and sections 552.117, 552.130, and 552.147 of the Government Code.

Section 552.026 of the Government Code incorporates FERPA into the PIA. Thus, a school district may withhold student records from public disclosure without requesting a ruling from the Attorney General. Indeed, even if you decide to request a ruling from the Attorney General, you must not submit any unredacted education records to the Attorney General – which sometimes means not submitting anything at all. It is up to the district to review and withhold student records appropriately.

Section 552.117(a)(1) of the Government Code gives current and former government employees the ability to except their personal information from public disclosure. Personal information includes an employee’s home address, home telephone number, emergency contact information, information that reveals whether the employee has family members, and social security number. The key here is that the employee at issue must have elected in writing to keep their information private prior to the public information request at issue. So, for example, if Pam Parent wants the home telephone number for Tara Teacher, the first question is whether Tara Teacher has elected to keep her information private. If she has, then you can withhold that information without requesting a ruling from the Attorney General. If she has not, then you must either release the information or request a ruling.

Section 552.117(a)(2) of the Government offers the same protection as section 552.117(a)(1), but is specific to peace officers commissioned under article 2.12 of the Code of Criminal Procedure and security officers commissioned under section 51.212 of the Education Code. Unlike the conditional protection granted to government employees by section 552.117(a)(1), this protection exists regardless of whether the officer has elected to keep his or her information private – as long as the officer is actively licensed as a peace or security officer, their personal information is excepted from disclosure under section 552.117(a)(2) of the Government Code.

It is important to know that information can only be withheld under sections 552.117(a)(1) and 552.117(a)(2) if the information is held in an employment context. In other words, the document you are redacting or withholding must be held in the district’s role as an employer. For example, if a teacher is caught stealing from the district, the subsequent police report would not be held by the district in an employment context, but rather in the context of the district as the injured party. The majority of personnel information, however, is held in an employment context.

Section 552.130 of the Government Code protects motor vehicle record information from disclosure. This includes, but is not limited to, driver’s license numbers, license plates, vehicle identification numbers, registration stickers, and any personal identification documents issued by a state agency. Interestingly, this also includes passports.

Section 552.147 is a bit peculiar – while 552.147(a) allows you to withhold the social security number of a living person, section 552.147(a-1) requires a school district to withhold the social security number of an employee. In other words, if the requested documents contain both the social security numbers of a public citizen and of an employee, the school district may withhold the public citizen’s social security number under 552.147(a), but must withhold the teacher’s social security number under section 552.147(a-1).

In addition to all this, Open Records Decision No. 684 authorizes you to withhold a variety of documents without requesting a ruling, including direct deposit authorization forms, I-9 forms, W-2 and W-4 forms, certain agendas and tapes of closed meetings, fingerprints, L-2 and L-3 declaration forms, and military discharge records. See Tex. Att’y Gen. Op. ORD 684 (2009).

However, there are two important qualifications to these exceptions. First, if you do make any of these redactions or withholdings, you must inform the requestor that you have done so – simply tell the requestor (in writing) that you have withheld some information and identify the relevant statutory exception. Second, be aware that the requestor may have a right of access to certain information that you cannot withhold. See Gov’t Code § 552.023. A person or their authorized representative has a right of access to that person’s private information. Id. In other words, you cannot withhold Tara Teacher’s own social security number from her.

If you have any questions about applying these exceptions, your school law attorney can help you through the process.

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