Preventive Law
Preventive Law Corner - Evaluations and the Texas Public Information Act
By Cheryl T. Mehl, Shareholder - Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.
May 14, 2010, 08:31

Evaluations and the Texas Public Information Act

What exactly can be withheld?

By Cheryl T. Mehl, Shareholder
Schwartz & Eichelbaum Wardell Mehl and Hansen, P.C.

Many schools have encountered individuals who attempt to use the Texas Public Information Act and information received in response to a request to embarrass or attack school employees. Reprimands and similar memoranda in files are often the target of the request.  Section 21.355 of the Texas Education Code says that “A document evaluating the performance of a teacher or administrator is confidential.” Thus, when faced with a request for “all records” pertaining to a teacher or administrator, the district must seek a ruling from the Attorney General on whether the district may withhold disclosure of information that the district believes to be “a document that evaluates,” by raising the “confidential by law” exception under Tex. Gov't Code § 552.101 in conjunction with Tex. Educ. Code § 21.355. 

So, that leads to the question of the day: What is a “document evaluating the performance of a teacher or administrator?”  We know the evaluation instrument itself would not be released to the public. Tex. Att’y Gen. ORD-643 (1996).  Do not forget, however, that ORD-643 is NOT a “previous determination” ruling that allows a school district to withhold disclosure unilaterally.  The district must ALWAYS make a request for a ruling on evaluative documents. The question, of course, is whether “document that evaluates” includes reprimands or memoranda other than the evaluation instrument itself.

This question was addressed in Abbott v. N. E. Indep. Sch. Dist., 212 S.W.3d 364 (Tex. App.- Austin 2006, no pet.).   The background of the case reveals that the Attorney General originally ruled that a reprimand to a teacher was public information because it did not fit the A.G.’s standard established in ORD-643.  The school district disagreed and sued the Attorney General as permitted under the Public Information Act, asking the court to rule in its favor.  The state district court judge ruled that the reprimand was an evaluative document.  [Side note: the TASB Legal Assistance fund was joined by ALL the state employee and administrator organizations in submitting an amicus curiae brief authored by Cheryl T. Mehl in support of the school district's position at both the district court and appellate level.]  The Attorney General then appealed that decision to the Third Court of Appeals in Austin.

Noting that the Commissioner of Education had previously held that teacher reprimands are confidential under the Texas Education Code and that the Commissioner’s decision had been affirmed by the Dallas Court of Appeals in Tave v. Alanis, 109 S.W.3d 890, 894 (Tex. App.-Dallas 2003, no pet.), the Austin Court of Appeals held that “the memorandum evaluates the teacher because it reflects the principal's judgment regarding her actions, gives corrective direction, and provides for further review. Therefore, we find it confidential and exempt from disclosure.” Abbott, 212 S.W.3d at 368.

The Attorney General has since cited the Abbott decision in over 180 informal Open Records rulings (ORs). While sometimes the Attorney General has sided with the district and permitted withholding the documents, other instances have resulted in a finding that the documents were “investigative” rather than evaluative, and therefore should be released. See, e.g., Tex. Att’y Gen. OR2009-16815.

While there is no surefire method for assuring the Attorney General will agree that a document is confidential, one suggestion might be to use a footer at the bottom of the document (or somewhere) that says “This document reflects the author’s judgment; it is to be used to evaluate the performance of a teacher or administrator and is intended to be confidential under Texas Education Code § 21.355.”  At least then the district can argue that the document was intended to be maintained as confidential when written.  Additionally, ensuring that any reprimand, directive, or other written communication to a teacher or administrator includes some “corrective action” and an indication that the author will be monitoring the person’s actions in the future will also provide support for characterizing the document as one that evaluates.  For teachers, it is not a bad idea to include a reference to the PDAS domain that will be affected by the shared documentation.

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