OFFKE OF THE ATTORNEY GENERAL. STATE OP TEXAS 

JOHN CORNYN 

January 22,200l 

Mr. Jim Nelson 

Commissioner of Education 

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 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 .O 19 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 CODE ANN. 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