Under PIA, school could reasonably anticipate litigation even though it was given only a “conditional” threat of suit

Appellant, B. W. B.// Cross-Appellant, Eanes Independent School District v. Appellee, Eanes Independent School District// Cross-Appellee, B. W. B03-16-00710-CV (Tex. App — Austin, January 10, 2018)

This is a Public Information Act (“PIA”) and mandamus action where the Austin Court of Appeals affirmed the order granting in part the school’s motion for summary judgment but denying its plea to the jurisdiction.  BWD’s daughter attended Eanes Independent School District (“EISD”) and was on the soccer team. BWD alleges the coach bullied his daughter and released her private information, thereby violating FERPA, HIPPA, and EISD’s Acceptable Use Guidelines for Technology.  He requested records related to Coach Rebe from EISD. The school sought an AG opinion regarding certain documents.  However, federal regulations do not allow the AG to review certain documents pertaining to student records. The AG deferred to the EISD to determine student record applicability.  The AG then determining the remining records were excepted under the litigation exception of the PIA since BWD had threatened formal complaints under the administrative process against the coach. BWD filed suit to compel the disclosure of the records. The trial court denied EISD’s plea to the jurisdiction but granted, in part, EISD’s summary judgment motion.

The court first held, contrary to EISD’s arguments in its plea, requestors are permitted to sue for mandamus to challenge an AG opinion regarding the release of information. They are not required to accept the AG’s determination of any exceptions. Therefore, the trial court has jurisdiction over this suit. FERPA (the federal statute on school privacy issues) establishes BWD has no standing to challenge EISD’s determination of what is a student record and what is not. Under FERPA a parent has a right to examine those records, and this right trumps the PIA’s litigation exception. Unfortunately, FERPA creates no private right of action. BWD’s course of action is to file a complaint with the federal Department of Education for the right to inspect the records.

For what remains, in order to fall within the litigation exception, the school must have reasonably anticipated litigation at the time of the records request and the withheld information must relate to the anticipated litigation. An isolated threat over the telephone, without more, does not trigger “reasonably anticipated litigation” for an entity. However, when a genuine dispute exists involving the entity, at least one threat of litigation has been presented, and the entity receives communication from an attorney, an entity may reasonably anticipate litigation. Here, BWD sent an email to Coach Rebe and carbon copied four other EISD email addresses addressing the dispute. His attorney contacted the school and stated they intend to file a formal administrative complaint, but they would not file suit if the coach had no further contact with the student. A “conditional” threat of litigation, matched with the other case specific facts, established EISD could reasonably anticipate litigation in order to assert the exception. The documents at issue in this case relate directly to the dispute and the coach. As a result, they can be withheld.

If you would like to read the opinion click here. Panel consists of Chief Justice Rose, Justice Field and Justice Bourland.  Memorandum opinion by Justice Field. The attorneys listed for B.B.W is Brian W. Bishop John J. Hightower. The attorneys listed for the Eanes Independent School District are Jonathan G. Brush and Dylan Farmer.

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