OFFKE OF THE ATTORNEY GENERAL. STATE OPTEXAS JOHN CORNYN

January 22,200l

Mr. Jim Nelson Commissioner ofEducation Texas Education Agency 1701 North Congress Avenue Austin, Texas 78701-1494 Opinion No. X-0333

Re: Whether section 323.019 of the Government Code authorizes the Texas Education Agency to 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 isconfidential 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 forcertain purposes. Section 323.019 ofthe Govermnent Code provides that employees ofthe Texas Legislative Council are state school officials forpurposes 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 toFERPA’s provisions governing release ofeducation records, webegin with
abrief discussion ofthe Texas Legislative Council and section 323.019. Pursuant to chapter 323 ofthe Government Code, the Texas Legislative Council (the “Council”), anagency 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 ofstate agencies, conducting studies forthe 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. $5323.010, .Ol1.

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

‘See Act of May 18, 1999,76th Leg., RX, ch. 1X%,$2, 1999 Tex. Gen. Laws 5436Mr. 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). Itrequires state agencies toprovide information to the Council “to the maximum extent permitted by state or federal law.” 

### Id. 4 323.019(b). Subsection (c) of section 323.O19provides that the Council isentitled “tocollect 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,”
aterm that includes any public orprivate agency orinstitution that receives federal funding. See 20 U.S.C. 5 1232g(a)(3) (1994). “Education records” isbroadly defined inFERPA to include records, files, documents and other materials maintained by an educational agency orinstitution that contain information directly related to astudent. See 

### id.5 1232g(a)(4)(A). Student “directory information,” information such as astudent’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 ofdirectory information after notice). The term “student” includes any person for whom an educational agency or institution maintains education records orpersonally identifiable information, but does not include aperson 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 apolicy or practice ofreleasing “education records (or personally identifiable information contained therein other than directory information

. ) of students without the written consent oftheir parents to any individual, agency, ororganization, 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 ofFERPA’s exceptions to the general rule prohibiting disclosure of student records without parental consent allow release ofinformation to school officials. Section 1232g(b)( 1)ofFERPA permits the release ofpersonally 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 ofthe 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 ofthe record;Mr. Jim Nelson - Page 3 (X-0333)

(C) (i)authorized representatives of(I)the Comptroller General ofthe United States, (II) the Secretary [ofEducation], or (III) 

### State educational authorities, under the conditions set forth in paragraph (3), or (ii) authorized representatives ofthe [United States] Attorney General for law enforcement purposes under the same conditions as apply to the Secretary under paragraph (3);

mconnection with astudent’s application for, orreceipt 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, ifthe allowed reporting or disclosure concerns the juvenile justice system and such system’s ability to effectively serve the student whose records arereleased, or (ii) after November 19, 1974, if-
(1)the allowed reporting ordisclosure concerns thejuvenile 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 inwriting 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 ofthe student.
(F) organizations conducting studies for, or on behalf of, educational agencies or institutions for the purpose of developing, validating, oradministering predictive tests, administering student aid programs, and improving instruction, ifsuch studies areconducted 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 itis conducted;
(G) accrediting organizations in order to carry out their accrediting functions;Mr. Jim Nelson - Page 4 (X-0333)

(II) parents ofadependent student ofsuch parents, asdefined in section 152 ofTitle 26;
(I) subject to regulations ofthe Secretary, in comiection with an emergency, appropriate persons ifthe knowledge ofsuch 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, inwhich 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 orinstitution) on which the subpoena is served, to not disclose to any person the existence or contents ofthe 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 alaw enforcement purpose, inwhich case the court orother 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 ofthe subpoena or any information furnished in response to the subpoena.

.
20U.S.C. $ 1232g@)(l)(A)-(J) (1994 & Supp. IV 1998) (emphasis added). In addition, release of student information isnot prohibited ifthere iswritten consent orincompliance 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.SeeLetter from Jim Nelson, Commissioner ofEducation, toHonorable John Comyn, Texas Attorney General at3n.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, aswe will discuss ingreater 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. 599.35 (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 ifthe disclosures are authorized under FERPA. See 34 C.F.R. 399.33(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 isaneducational agency orinstitution subject toFERPA’s funding penalty for unauthorized release ofinformation, see 20 U.S.C. 5 1232g(b)(l) (1994), even though itdoes not directly enroll students. FERPA defines the term “educational agency orinstitution” to include any public orprivate 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 ofEducation rules indicate that astate agency like TEA that receives federal education funding and hasjurisdiction over public elementary and secondary educational institutions is aneducational agency orinstitution subject toFERPA. See 34C.F.R. 599.1(a) (2000) (defining educational agency orinstitution to include “an educational agency orinstitution to which funds have been made available under any program administered by the Secretary [ofEducation], if- (1) The educational institution provides educational services orinstruction, orboth, to students;
or (2) 

### Theeducational agency isauthorized todirectandcontrolpublic elementary orsecondary,
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 ofthe Texas Legislative Council are “considered state school officials” for purposes ofFERPA. TEX.GOV’TCODE ANN.5323.019(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 tonondisclosure that allow release ofinformation to school officials. Inconstruing these provisions, we are aided by interpretive regulations promulgated by the United States Department ofEducation, 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 ofinformation without parental consent narrowly. We conclude that none ofthese provisions authorizes the release of information to Texas Legislative Council employees, even though they are considered “state school officials” forpurposes ofTexas law.

‘Telephone Conversation withDavid A.Anderson, General Counsel, Texas EducationAgency(Dec. 21,200O).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 ofthe 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 atthe local level, 

### i.e. within the student’s school and school district, rather than to school officials atthe 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. 599.31(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 ofinformation 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 ofthe 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 ofEducation 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 ofFederal 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’TCODEANN. 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 apurpose for which the federal provisions permit the release ofinformation.

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 forthe use ofinformation “to develop and evaluate legislative policy,” TEX. GOV’T CODE ANN. 5323.019(c) (Vernon Supp. 2000), and does not specifically provide forthe disclosure ofthe information with respect tojuvenile justice matters, we donot believe that subsection(b)(l)(E) authorizes theTEA torelease 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 ofthe Texas Legislative Council without consent despite the factMr. 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 ofEducation. 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 onthe question raised inthis request.5 Should the Family Policy Compliance Office advise the TEA that itmay 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 ofviolating the Act for TEA’s federal funding, see 20 U.S.C. 5 1232g(b)(l) (1994). While TEA funding might bejeopardized ifitrelied on an opinion ofthis office that interpreted an exception tonondisclosure broadly, TEA would nothave the same concerns inrelying 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 torelease personally identifiable student information to employees of the Texas Legislative Council without consent despite the factthat section 323.019 ofthe Government Code provides that such employees are“state school officials” forpurposes ofthat 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