Opinion
NO. 03-16-00710-CV
01-10-2018
Appellant, B. W. B.// Cross-Appellant, Eanes Independent School District v. Appellee, Eanes Independent School District// Cross-Appellee, B. W. B.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-15-001653 , HONORABLE KARIN CRUMP, JUDGE PRESIDING MEMORANDUM OPINION
B.W.B. filed a petition for writ of mandamus in the trial court, seeking to compel Eanes Independent School District (EISD) to release documents under the Texas Public Information Act (TPIA). See Tex. Gov't Code § 552.321(a). EISD filed a plea to the jurisdiction and a motion for summary judgment. The trial court denied the plea to the jurisdiction and granted the motion for summary judgment in part and denied the motion for summary judgment in part. B.W.B. now appeals the partial grant of summary judgment, and EISD cross-appeals the denial of the plea to the jurisdiction. We will affirm the trial court's judgment.
B.W.B. is a licensed attorney who represented himself in the trial court and in this Court.
BACKGROUND
A dispute arose between B.W.B. and EISD concerning B.W.B.'s daughter's participation in EISD's soccer program. B.W.B. alleged that EISD coach Rennie Rebe bullied his daughter and shared her private information. He further alleged that EISD officials failed to effectively discipline Coach Rebe and encouraged the parents of other students to retaliate against B.W.B. because of this dispute. In 2011, B.W.B. requested records related to Coach Rebe from EISD. See id. § 552.021 (providing that public information is available to the public). Instead of producing all of the responsive documents, EISD requested an opinion from the Office of the Attorney General of Texas (OAG). See id. § 552.301(a) ("A governmental body that receives a written request for information that it wishes to withhold from public disclosure . . . must ask for a decision from the attorney general about whether the information is within that exception . . . ."). On July 7, 2011, OAG issued an opinion concluding that EISD must release certain documents to B.W.B. See Tex. Att'y Gen. Op. OR2011-09623.
B.W.B.'s dispute with Coach Rebe continued, and on October 9, 2014, B.W.B. emailed her. The email was carbon copied to several other EISD email addresses and stated, "Please also do not discuss [B.W.B.'s daughter's] situation with any other students—if you do, I will immediately sue EISD for FERPA violations." On October 13, B.W.B. filed another open records request under the TPIA. Then, on October 14, B.W.B. sent a letter to several EISD officials. This letter alleged that Coach Rebe's actions "violate FERPA, HIPPA, and EISD's Acceptable Use Guidelines for Technology." The letter also stated, "If it is necessary to file a lawsuit and to obtain an injunction to enjoin those actions, I am prepared to do so. I remain hopeful, however, that legal action will not be necessary."
See 20 U.S.C. § 1232g (Family Educational Rights and Privacy Act).
On October 16, B.W.B. submitted a formal "Notice of Complaint" against Coach Rebe, alleging, among other things, that she violated FERPA and harassed his daughter. This Notice initiated "Level One" of the EISD grievance process. On November 10, EISD responded to B.W.B. In its letter, EISD stated that it did not find any evidence that Coach Rebe had harassed B.W.B.'s daughter. However, the letter also stated that EISD would remind the coach of EISD's policies. B.W.B. appealed this response, filing a "Level Two" complaint.
Although EISD released a number of records to B.W.B. in response to his October 13, 2014 request, it withheld certain documents and sought an OAG opinion regarding their release. On January 9, 2015, OAG issued its decision. In its opinion, OAG explained that the United States Department of Education (DOE) has informed OAG that FERPA "does not permit state and local educational authorities to disclose to [OAG], without parental or an adult student's consent, unredacted, personally identifiable information contained in education records for the purpose of [OAG's] review in the open records ruling process." Tex. Att'y Gen. Op. OR2015-00433. OAG further stated the following:
We note the requestor is a parent of one of the students to whom some of the submitted information pertains. Because our office is prohibited from reviewing these education records to determine the applicability of FERPA, we will not address the applicability of FERPA to any of the submitted records, other than to note that parents have a right of access under FERPA to their own child's education records and their right of access prevails over exceptions under sections 552.103, 552.117, and 552.137 of the Government Code. Such determinations under FERPA must be made by the educational authority in possession of the education records. The DOE also has informed our office, however, a parent's right of access under FERPA to information about the parent's child does not prevail over an educational institution's right to assert the attorney-client privilege. Therefore, we will address your assertion of the attorney-client privilege under section 552.107 of the Government Code to the submitted information. We will also consider the district's claimed exceptions to
the extent the requestor does not have a right of access to the submitted information under FERPA.Id. (citations and footnote omitted).
The OAG opinion then discussed the litigation exception to the release of records under the TPIA. See Tex. Gov't Code § 552.103. The opinion described EISD's complaint process as EISD represented that process to OAG in its request for a decision. The opinion also stated that, according to EISD, the requestor "informed [EISD] he intended to file a formal complaint with [EISD] regarding a dispute with the named district employee and instructed the named employee not to have contact with his child or discuss the dispute with other students or he would file suit against [EISD]." Tex. Att'y Gen. Op. OR2015-00433. OAG then determined that the litigation exception applied to the documents that EISD withheld:
Based on your representations, we find you have demonstrated the district's administrative procedures for parent grievances are conducted in a quasi-judicial forum, and thus, constitute litigation for purposes of section 552.103. Further, we find the district reasonably anticipated litigation on the date it received the request for information and the submitted information relates to the anticipated litigation. Accordingly, the district may withhold the submitted information under section 552.103 of the Government Code.Id. (footnote omitted). OAG further noted, "If the requestor does not have a right of access to the submitted information under FERPA, this determination is dispositive of your remaining arguments against disclosure." Id. The OAG opinion then went on to discuss the attorney-client privilege. See Tex. Gov't Code § 552.107(1). OAG determined that EISD had "demonstrated the applicability of the attorney-client privilege to the information at issue," although "one of the e-mail strings at issue" was subject to possible release. See Tex. Att'y Gen. Op. OR2015-00433.
The OAG opinion concluded the following:
In summary, to the extent the district determines the submitted information does not constitute student records to which the requestor, as a parent of one of the students at issue, has a right of access under FERPA, the district may withhold the submitted information under section 552.103 of the Government Code. To the extent the district determines the submitted information does constitute student records to which the requestor has a right of access under FERPA, the district may withhold the information in Exhibit C under section 552.107(1) of the Government Code and must release the remaining information.Id.
B.W.B. filed further records requests on November 25, 2014, January 13, 2015, and April 15, 2015. Then, on April 27, 2015, he filed his original petition in this case. In his later amended petition, B.W.B. sought a writ of mandamus directing EISD to provide the records he had requested under the TPIA. See Tex. Gov't Code § 552.321(a). He also sought an order directing EISD to prepare and provide a privilege log "and to produce the records withheld to the Court for in camera inspection and ruling." B.W.B. requested attorney's fees under the TPIA. See id. § 552.323(a). Finally, B.W.B. asked for an order "authorizing the taking of depositions on oral examination in order to investigate a potential claim or suit." See Tex. R. Civ. P. 202.
The trial court later signed an order denying B.W.B.'s petition for deposition under Rule 202, and B.W.B. does not challenge that order in this appeal.
EISD voluntarily produced a privilege log. It also filed a combined plea to the jurisdiction and motion for summary judgment. After holding a hearing, the trial court signed a final judgment denying EISD's plea to the jurisdiction. The court also granted EISD's motion for summary judgment in part "on the grounds that: (1) EISD's administrative grievance process is 'litigation' for purposes of Texas Government Code § 552.103, and (2) EISD reasonably anticipated litigation to satisfy the 'litigation exception' under Texas Government Code § 552.103." However, the court denied EISD's motion for summary judgment in part, ruling that certain enumerated documents "do not satisfy the requirements of the 'litigation exception' under Texas Government Code § 552.103 and shall be disclosed to Plaintiff B.W.B. (with redactions for any FERPA information not regarding B.W.B. or his child)." Finally, the court granted EISD's motion for summary judgment in part "on the grounds that there is no genuine issue of material fact regarding EISD's reasonable reliance on a written decision of the attorney general in this matter under Texas Government Code § 552.323." Accordingly, the court denied B.W.B.'s request for attorney's fees.
B.W.B. now appeals the trial court's partial grant of EISD's motion for summary judgment, and EISD appeals the trial court's denial of its plea to the jurisdiction.
In the appeal before us, EISD does not challenge the trial court's partial denial of its motion for summary judgment.
DISCUSSION
Plea to the Jurisdiction
Because it implicates our subject-matter jurisdiction, we begin by considering EISD's cross-appeal challenging the trial court's denial of its plea to the jurisdiction. EISD contends that the TPIA does not include a clear waiver of governmental immunity and that B.W.B. lacks standing to challenge EISD's determinations of what information is protected by FERPA, because FERPA does not create a private right of action. We review a trial court's ruling on a plea to the jurisdiction de novo. See Houston Belt & Terminal Ry. Co. v. City of Hous., 487 S.W.3d 154, 160 (Tex. 2016); McLane Co., Inc. v. Texas Alcoholic Beverage Comm'n, 514 S.W.3d 871, 874 (Tex. App.—Austin 2017, pet. denied).
The TPIA provides that a requestor "may file suit for a writ of mandamus compelling a governmental body to make information available for public inspection if the governmental body . . . refuses to supply public information . . . ." Tex. Gov't Code § 552.321(a). Moreover, as EISD concedes, this Court has previously concluded that the TPIA waives immunity by allowing a requestor to bring a suit for writ of mandamus. See Texas State Bd. of Veterinary Med. Exam'rs v. Giggleman, 408 S.W.3d 696, 699 (Tex. App.—Austin 2013, no pet.) (stating that section 552.321 "waives sovereign immunity so as to permit a requestor" to file suit for a writ of mandamus if a governmental body "refuses to supply information that the requestor contends is public information"); Texas Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.—Austin 1992, no writ) (construing predecessor statute and concluding that, "if the attorney general decides that the information is not a public record, the person seeking such information is not precluded from petitioning the court for a writ of mandamus"). Other courts of appeals have also held that section 552.321 waives governmental immunity. See City of Hous. v. Houston Mun. Emp. Pension Sys., 513 S.W.3d 114, 132 (Tex. App.—Houston [14th Dist.] 2016, pet. filed) ("Under the unambiguous language of section 552.321 . . . and recent precedent from the Supreme Court of Texas, a requestor may file suit against a governmental body seeking the mandamus relief provided under this statute."); Harris Cty. Appraisal Dist. v. Integrity Title Co., LLC, 483 S.W.3d 62, 68-69 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) ("Following [Kallinen v. City of Hous., 462 S.W.3d 25 (Tex. 2015) (per curiam)], we conclude that the trial court had jurisdiction under section 552.321 to consider whether the information Integrity requested was public information subject to disclosure.").
Even more significantly, the Texas Supreme Court has apparently settled this issue in Kallinen. In that case, the TPIA requestor filed a suit for mandamus after the City of Houston withheld information and requested an OAG decision but before OAG issued its opinion. See Kallinen, 462 S.W.3d at 27. "The City filed a plea to the jurisdiction, arguing that the court lacked jurisdiction over the suit until the Attorney General ruled." Id. The supreme court held that the trial court had jurisdiction over the mandamus suit. See id. at 29. The court explained that section 552.321 provides three instances in which a requestor can file a suit for mandamus: (1) when a governmental body refuses to request an OAG decision, (2) when a governmental body refuses to supply public information, and (3) when a governmental body refuses to supply information that OAG had determined is public information that is not excepted from disclosure. See id. at 27. The parties in Kallinen agreed that (1) and (3) did not apply to the requestor's situation. See id. The supreme court held that (2) did apply, even though OAG had not yet issued an opinion. See id. at 28. The court explained that the City's argument was "flawed" because "it equates information that is public with information that has been determined by the Attorney General to be public, so that condition [(3)] swallows up condition [(2)]. This violates a duty of statutory interpretation to give effect to all the words of a statute and not treat any statutory language as surplusage if possible." Id. quotation marks omitted). The court went on to explain that the City's view "would relegate mandamus relief to compelling a governmental body to request an Attorney General's decision and then comply with it. The correctness of that decision would be unreviewable. But we have reviewed the Attorney General's rulings." Id.
We therefore conclude that the Texas Supreme Court has rejected essentially the same jurisdictional argument that EISD now makes—namely, that a TPIA requestor cannot challenge an adverse OAG opinion. In light of Kallinen and decisions from our sister courts, we decline to revisit our precedent on this issue, and we conclude that section 552.321 waives EISD's governmental immunity by allowing B.W.B. to file a suit for a writ of mandamus compelling EISD to release public information. Moreover, although we agree with EISD that B.W.B. lacks standing to challenge EISD's FERPA determinations, as we will discuss in more detail below, we do not believe that this lack of standing on a specific issue mandates the dismissal of B.W.B.'s entire suit. B.W.B. still has standing, for example, to seek a writ of mandamus compelling EISD to release public information that it is withholding based solely on the TPIA's litigation exception. Therefore, we conclude that the trial court had jurisdiction over B.W.B.'s mandamus suit and did not err in denying EISD's plea to the jurisdiction. Accordingly, we overrule EISD's sole appellate issue.
EISD relies on City of El Paso v. Abbott, in which this Court held that the trial court lacked jurisdiction over a suit for mandamus brought under section 552.321. See 444 S.W.3d 315, 327 (Tex. App.—Austin 2014, pet. denied). Whether or not EISD's interpretation of City of El Paso is correct, which we do not address, we must follow the Texas Supreme Court's intervening decision in Kallinen.
Summary Judgment
We now consider B.W.B.'s sole appellate issue, in which he contends that the trial court erred in partially granting EISD's motion for summary judgment. We review a trial court's ruling on a motion for summary judgment de novo. See Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). In addition, "[w]hether information is subject to the disclosure pursuant to an open records request and whether an exception to disclosure applies to the information are questions of law involving statutory construction that we review de novo." In re Texas Dep't of State Health Servs., 278 S.W.3d 1, 4 (Tex. App.—Austin 2008, no pet.).
B.W.B. contends that the records he requested and that EISD withheld are "student records" to which he has a right of access under FERPA. According to B.W.B., his right to access his daughter's student records prevails over the TPIA's litigation exception. B.W.B. also contends that EISD presented false facts to OAG, and that these false facts were the basis of OAG's decision that EISD's grievance process was "quasi-judicial" for the purposes of the litigation exception. Further, B.W.B. argues that EISD did not reasonably anticipate litigation at the time B.W.B. requested the records. Finally, B.W.B. contends that the trial court erred in granting EISD's motion for summary judgment as to B.W.B.'s claim for attorney's fees.
Under the TPIA's litigation exception, a governmental body need not release public information "if it is information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party or to which an officer or employee of the state or a political subdivision, as a consequence of the person's office or employment, is or may be a party." Tex. Gov't Code § 552.103(a). "Information relating to litigation involving a governmental body or an officer or employee of a governmental body is excepted from disclosure under Subsection (a) only if the litigation is pending or reasonably anticipated on the date that the requestor applies to the officer for public information for access to or duplication of the information." Id. § 552.103(c). "The purpose of the litigation exception is to prevent parties in litigation from obtaining documents outside of discovery." Thomas v. Cornyn, 71 S.W.3d 473, 487 (Tex. App.—Austin 2002, no pet.).
In order to fall within this litigation exception, the governmental body must have reasonably anticipated litigation at the time of the records request and the withheld information must relate to the anticipated litigation. See Tex. Gov't Code § 552.103(a), (c). Therefore, we must first consider whether EISD reasonably anticipated litigation when B.W.B. filed his TPIA request.
"The meaning of 'reasonably anticipated litigation' has been the subject of many Attorney General opinions." University of Tex. Law Sch. v. Texas Legal Found., 958 S.W.2d 479, 481 (Tex. App.—Austin 1997, no pet.); see Cornyn v. City of Garland, 994 S.W.2d 258, 261 (Tex. App.—Austin 1999, no pet.) ("The expression 'reasonably anticipated litigation' is a term of art derived from the attorney general's Open Records Decision 638 (1996) . . . ."). "Because the legislature has charged the Attorney General with rendering an initial decision each time a governmental entity asserts an exception under the Act, the Attorney General's construction of the Act has great weight." University of Tex. Law Sch., 958 S.W.2d at 481; see In re Texas Dep't of State Health Servs., 278 S.W.3d at 4-5 ("Opinions of the attorney general, while not binding on the judiciary, are persuasive and are entitled to consideration."). "According to the Attorney General, litigation cannot be reasonably anticipated until concrete evidence suggests that litigation will ensue." University of Tex. Law Sch., 958 S.W.2d at 481; see Tex. Att'y Gen. Op. ORD 452 ("Litigation cannot be regarded as 'reasonably anticipated' unless there is more than a 'mere chance' of it—unless, in other words, we have concrete evidence showing that the claim that litigation may ensue is more than mere conjecture."). "Whether litigation is reasonably anticipated must be determined on a case-by-case basis." Tex. Att'y Gen. Op. ORD 452.
OAG has ruled that, "[w]here a requestor publicly states on more than one occasion an intent to sue, that alone does not trigger" the litigation exception. Id. Therefore, "[a]n isolated telephone threat of litigation, without more, also does not invoke this section." Id. "On the other hand, [OAG has applied the litigation exception] where an attorney made a written demand for disputed payments and stated that further legal action would be necessary unless the payments were forthcoming, and where other facts indicated a real dispute between the parties." Id. OAG has "also held that where a governmental body produced nine affidavits from individuals who stated that they had heard a former employee say that he intended to sue the entity, and where the entity was contemplating litigation against the employee," the litigation exception applied. Id. In Texas Attorney General Opinion ORD 452, the facts fit "somewhere in between these decisions." Id. In that instance, the governmental body had "received telephone threats of lawsuits," although "[n]o papers [had] been served on the district, and no claims for compensation ha[d] been filed." Id. One of the telephone threats was "from an attorney purporting to represent a parent." Id. OAG concluded "that the district's conclusion that litigation is likely is reasonable," in part because the district received at least one threat of litigation from an attorney and because "there is a genuine dispute concerning a very serious matter involving a possible violation of federal law." Id.
Here, B.W.B. sent an email to Coach Rebe on October 9, 2014, several days before filing his October 13 records request, and carbon copied four other EISD email addresses. In this email, B.W.B. stated that the coach "yelled at and verbally berated" his daughter and required her to run despite an injury. B.W.B. asserted, "[T]here are many parents and former students who will attest to the same actions on your part in every school program in which you have coached." He also referenced an August 27 meeting with another coach that B.W.B. "asked for because of my concern that your over-training and pressure would result in injury." B.W.B. then stated,
I am requesting to meet with [two individuals] immediately to address these matters and to initiate the formal complaint process. In the meantime, and unless and until there is a resolution, [B.W.B.'s daughter] will be on leave of absence from your class. Please do not attempt to communicate with [B.W.B.'s daughter] or have any interaction with [B.W.B.'s daughter]. Please do not discuss [B.W.B.'s daughter's] situation with any other students—if you do, I will immediately sue EISD for FERPA violations.Finally, B.W.B. referred to a "long list of former . . . players who reached the point where they would no longer accept [the coach's] verbal, emotional, and physical abuse."
In its opinion of January 9, 2015, OAG explained that EISD made the following representation in its letter requesting OAG's decision:
You explain the requestor, a parent of a district student and a licensed attorney, informed the district he intended to file a formal complaint with the district regarding a dispute with the named district employee and instructed the named employee not to have contact with his child or discuss the dispute with other students or he would file suit against the district.Based in part on this representation, OAG ruled that "the district reasonably anticipated litigation on the date it received the request for information."
Giving the OAG opinion "great weight," see University of Tex. Law Sch., 958 S.W.2d at 481, we agree that EISD reasonably anticipated litigation. By the time B.W.B. made his October 2014 records request, he had been in a highly contentious relationship with EISD and his daughter's coach for at least several years. His October 9 email accused the coach of a long history of serious misconduct and informed the coach and other persons connected with EISD that he intended to initiate EISD's formal complaint process. In addition, although the fact that B.W.B. is a licensed attorney does not automatically render EISD's anticipation of litigation reasonable, it does weigh in that direction. Most importantly, B.W.B. threatens in this email to "sue EISD" if Coach Rebe discussed his daughter's situation with other students. Although B.W.B. characterizes this threat as conditional, arguing that his threat evaporated when the triggering event never occurred, we conclude that this threat demonstrated B.W.B.'s willingness to escalate the situation from a disagreement with his daughter's coach to legal action against EISD.
Both the trial court and OAG determined that EISD's administrative grievance process constitutes "litigation" for the purpose of section 552.103. Because we conclude that EISD reasonably anticipated litigation in an actual court, we need not decide whether its grievance process was "litigation."
We also note that on October 14, 2014, after B.W.B. filed his October 13 TPIA request but before he filed his subsequent requests, he sent a message to an EISD principal, assistant principal, athletic director, and general counsel. In that message, he stated, "[T]here is a formal complaint and grievance that I have filed and which is pending regarding [Coach Rebe] . . . ." The message also asserted, "Ms. Rebe's actions are reprehensible and illegal, and border on obsession and stalking. Among other things, Coach Rebe's actions violate FERPA, HIPPA, and EISD's Acceptable Use Guidelines for Technology." Then, B.W.B. again threatened to sue EISD: "If it is necessary to file a lawsuit and to obtain an injunction to enjoin those actions, I am prepared to do so."
Having determined that EISD reasonably anticipated litigation, we must next decide whether the documents it withheld relate to that litigation. We note that "relating to" as it is used in section 552.103(a) is very broad, encompassing even information that would not be "relevant," in the evidentiary sense, during litigation. See id. at 482 ("Information can be related to litigation without being relevant to the substantive issues in the litigation."); see also City of San Antonio v. Abbott, 432 S.W.3d 429, 432 (Tex. App.—Austin 2014, pet. denied) ("The plain meaning of the phrase 'relates to' is 'to have a connection with, to refer to, or to concern.' In ordinary use, the phrase 'relates to' is very broad.") (citation omitted); Texas Dep't of Pub. Safety v. Abbott, 310 S.W.3d 670, 675 (Tex. App.—Austin 2010, no pet.) ("The terminology 'relates to' is very broad in its ordinary usage, and we must presume that the legislature used such a broad formulation purposely. To conclude otherwise would be to judicially truncate the ordinary meaning of the words 'relates to.'"). The documents at issue here, which are described in EISD's privilege log and which the trial court has submitted for our in camera inspection, are directly concerned with B.W.B.'s allegations and complaints, which would be the core subject matter of B.W.B.'s anticipated lawsuit against EISD. We therefore conclude that the information that EISD has withheld under section 552.103 was "relat[ed] to" the litigation that EISD reasonably anticipated against B.W.B. Furthermore, because we have concluded that EISD reasonably anticipated litigation and withheld documents related to that litigation, we also conclude that the trial court did not err in holding that EISD could withhold the documents under the TPIA's litigation exception.
One of the disputed documents appearing on EISD's privilege log is a memorandum of EISD's athletic director concerning a meeting he had with Coach Rebe in 2011. Even assuming, without deciding, that neither the litigation exception nor any other exception applies to this document, we note that this unredacted document is already in the record before us, and B.W.B. quotes this document in an email dated January 11, 2015, which is also in the record. Because this document is already in the record and therefore in B.W.B.'s possession, his request for this document is moot and provides no ground for reversal.
B.W.B. argues that EISD is withholding student records pertaining to his daughter, that he has a right under FERPA to examine those records, and that this right trumps the TPIA's litigation exception. We agree that FERPA provides that a school must allow B.W.B. to examine his child's student records or jeopardize its reception of federal funds:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.See 20 U.S.C. § 1232g(a)(1)(A). We also agree that this provision prevails over the TPIA's litigation exception. See Tex. Att'y Gen. Op. OR2015-00433 (noting that "parents have a right of access under FERPA to their own child's education records and their right of access prevails over exceptions under section[] 552.103 . . . of the Government Code").
However, neither this Court, nor the trial court, nor OAG is the proper entity to interpret FERPA and its application to EISD's records—it is EISD that must make FERPA determinations. See id. ("Such determinations under FERPA must be made by the educational authority in possession of the education records."); id. ("To the extent the district determines the submitted information does constitute student records to which the requestor has a right of access under FERPA . . . .") (emphasis added); cf. 20 U.S.C. § 1232g(b)(1)(A) (providing that educational institution may disclose FERPA-protected information without the consent of the student or parent 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") (emphasis added); id. § 1232g(b)(6)(B)(providing that educational institution may disclose the results of certain disciplinary proceedings "if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution's rules or policies with respect to such crime or offense") (emphasis added); id. § 1232g(i)(1)(B) (providing that educational institution may disclose certain information if "the institution determines that the student has committed a disciplinary violation with respect to such use or possession") (emphasis added).
FERPA creates no private right of action. See Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002) (holding that "FERPA's nondisclosure provisions" do not create an implied private right of action and do not create enforceable rights under § 1983); Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 786 (2d Cir. 2002) (holding that "FERPA's records-access provisions, § 1232(g)(a)(1), do not create a personal right enforceable under § 1983"). If B.W.B. believes that EISD has not complied with FERPA, he may file a complaint with the DOE, but he may not ask us to enforce FERPA by second-guessing EISD's FERPA determinations. See 20 U.S.C. § 1232g(g) ("The Secretary shall establish or designate an office and review board within the Department for the purpose of investigating, processing, reviewing, and adjudicating violations of this section and complaints which may be filed concerning alleged violations of this section."); 34 C.F.R. § 99.63 ("A parent or eligible student may file a written complaint with the Office regarding an alleged violation under the Act and this part."). As the United States Court of Appeals for the Seventh Circuit has explained,
FERPA, at issue in Gonzaga, directs the Secretary of Education to establish an office and review board for "investigating, processing, reviewing, and adjudicating violations of [FERPA]." 20 U.S.C. § 1232g(g). Students and parents who suspect a violation can file written complaints with the board, which can initiate investigations. See 34 C.F.R. §§ 99.63-99.67. If the Secretary determines that a recipient institution is failing to comply with FERPA and that compliance cannot be secured voluntarily, the statute allows the Secretary to terminate funding to the institution. 20 U.S.C. §§ 1234c(a), 1232g(f). The Gonzaga Court found that Congress's decision to provide a mechanism to enforce FERPA buttressed its conclusion that the statute did not confer individual rights.Indiana Prot. & Advocacy Servs. v. Indiana Family & Soc. Servs. Admin., 603 F.3d 365, 379 (7th Cir. 2010); see Horsley v. University of Ala., No. 2:13-CV-00226-AKK, 2013 WL 12089495, at *5 (N.D. Ala. June 27, 2013), aff'd, 564 Fed. Appx. 1006 (11th Cir. 2014) ("Horsley asserts a claim under FERPA for Prof. Miller's apparent violation of the nondisclosure provisions. Unfortunately for Horsley, the Supreme Court has held that there is no question that FERPA's nondisclosure provisions fail to confer enforceable rights.") (citation and quotation marks omitted); id. ("Where, as here, a student suspects a FERPA violation, she may file a written complaint with the Family Policy Compliance Office established by the Secretary, who, if the complaint is timely and provides the necessary information, will institute an investigation."); Doe v. Pontifical Coll. Josephinum, No. 16AP-300 2017-Ohio-1172, 2017 WL 1180661, at *6 (Ohio Ct. App. Mar. 30, 2017) (Brunner, J., concurring) ("Based on the plain language of the statute, the consequence for failing to recognize FERPA rights is the denial of federal funds, not exposure to private suit. FERPA is enforced by the United States Secretary of Education, not by the individual legal action of an aggrieved student or parent . . . ."); id. at *7 ("Because the statute vests enforcement power in the Secretary and not the aggrieved individual, the United States Supreme Court (among numerous other courts) has held that FERPA does not create a private right of action.").
Because we have concluded that the TPIA's litigation exception applies to the documents that EISD is withholding and that no applicable state or federal law allows judicial review of EISD's FERPA determinations, we conclude that the trial court did not err to the extent that it granted summary judgment in EISD's favor. Accordingly, we overrule B.W.B.'s sole appellate issue.
B.W.B. also argues that the trial court erred in granting summary judgment for EISD as to his claim for attorney's fees. In a mandamus action under the TPIA, a court "shall assess costs of litigation and reasonable attorney fees incurred by a plaintiff who substantially prevails." Tex. Gov't Code § 552.323(a). However, even leaving aside the question of whether B.W.B. "substantially prevail[ed]," the trial court concluded that "there is no genuine issue of material fact regarding EISD's reasonable reliance on a written decision of the attorney general in this matter." See id. § 552.323(a)(3) ("the court may not assess those costs and fees against a governmental body if the court finds that the governmental body acted in reasonable reliance on . . . a written decision of the attorney general"). We agree. OAG determined that EISD could withhold certain documents based on the litigation exception, and EISD did so. B.W.B. argues that EISD failed to comply with OAG's opinion because it withheld information that he is entitled to access under FERPA. As discussed above, however, EISD is the proper entity to make FERPA determinations concerning its records. Accordingly, we overrule B.W.B.'s appellate issue to the extent it challenges the trial court's summary judgment as to B.W.B.'s claim for attorney's fees.
CONCLUSION
We affirm the trial court's final judgment denying EISD's plea to the jurisdiction and granting EISD's motion for summary judgment in part and denying EISD's motion for summary judgment in part.
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Field and Bourland Affirmed Filed: January 10, 2018