Information: Public Or Private?

School districts expect you to know the rules on accessing and using district and student information, and you should expect the same from your district when it comes to your personal and professional information on file. This article is designed to make you aware of some of the rules your district must follow that limit its use of employee information and disclosure to the public.

The Texas Public Information Act (Act) gives citizens complete access to all information about school districts and the official acts of employees. Recognizing legitimate restrictions on personal information, the Act denies the public access to employee information made confidential by law. The Act also limits access if disclosure would constitute a clearly unwarranted invasion of personal privacy, though courts have said that not every disclosure of intimate or embarrassing information invades an employee’s privacy.

Basic private information

1. Address, phone number, Social Security number

A district must protect an employee’s address, phone number and Social Security number if the employee requests nondisclosure. An employee can restrict public access to the information by filing a written request with the district no later than 14 days after beginning employment with the district. If the employee does not timely file a request, the Texas Attorney General has said that an employee’s request is still timely if filed before a citizen requests the information. Note that a Social Security number may be confidential even without such an election if it was obtained and maintained by the district pursuant to any provision of law enacted on or after Oct. 1, 1990.

2. Salary, stipends, position, years of experience, deductions, 403b

The public has the right to know an educator’s salary, stipends, benefits, assignment and years of experience, but not charitable contributions, deductions for investment accounts or similar personal financial decisions.

3. Transcripts, credentials

The public has a right to know the courses a teacher took and the teacher’s degree, but not course grades. The State Board for Educator Certification posts a teacher’s certification credentials online. The law makes an educator’s examination score confidential unless the educator fails the exam more than five times.

Public interest outweighs right of privacy to embarrassing personal information

1. Harassment charges

As previously noted, an employee’s privacy right does not prevent the disclosure of all embarrassing information. The Act does not keep citizens from requesting information about a public employee’s alleged school-related misconduct or complaints about a teacher’s job performance. In a sexual harassment situation, for example, the public does not have a right to know the identity of a complainant, the substance of the complaint, the identity of a witness or the details of a witness statement. The public does have a right to a copy of the alleged perpetrator’s statement and the board’s conclusions, subject to redaction of the alleged victim’s and witness’ names and of personally identifiable information.

2. Criminal history

The law makes confidential criminal records obtained from the Texas Department of Public Safety, but not records of an employee’s arrest by a local law enforcement agency.

Private health information protected by law

The law makes confidential health information requested or received by a district pursuant to law. If an employee tells a colleague or administrator about a health condition, the law may restrict a district’s right to use the information, but the confidentiality rules may not apply.

1. Americans with Disabilities Act (ADA)

To have a “disability” under the ADA means that a person has a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or is regarded as having such an impairment. A person “qualified” for ADA protections can perform essential job functions with or without reasonable accommodation. To show a right to modification or removal of workplace barriers that limit a person’s ability to perform a job, an educator may have to disclose health information that the district must protect as confidential. An employee who provides required medical information to a human resources (HR) director can expect the director to disclose to the employee’s supervisor only facts related to necessary restrictions on an employee’s duties and necessary accommodations. Districts must keep the employee’s health-related information on separate forms, in separate files, and treat it as a confidential medical record.

The ADA also prevents inquiries that might lead to the disclosure of facts of a disability for which the employee requires no accommodations. A district “shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such...inquiry is shown to be job-related and consistent with business necessity.” Without meeting that standard, an employee cannot: ask questions about a person’s disability and the nature of a disability; make requests for medical documentation; question co-workers or friends about an employee’s disability; and inquire into current or prior use of prescription medications. Permitted questions include asking “How are you?”, asking about nondisability-related impairments such as a broken leg, and asking an employee about on-the-job drinking or illegal drug use.

2. Family and Medical Leave Act (FMLA)

Among its benefits, the FMLA entitles qualified employees to take up to 12 weeks of leave for personal or family serious health conditions. A doctor must certify the date a condition began and its probable duration; provide “appropriate” medical facts regarding the condition; and provide medical facts that relate to the type of leave the employee will take. Districts must keep FMLA records in confidential files apart from personnel files.

Here the ADA and FMLA overlap. As with the ADA, an educator can give FMLA medical certification information to the district’s HR director with a cover letter requesting that the information be kept confidential. A principal would need to know the educator’s planned absence dates (FMLA), but would not have a business necessity (ADA) for details about the educator’s health status.

3. Health Insurance Portability and Accountability Act (HIPAA)

Most people have signed HIPAA confidentiality forms at medical offices to permit necessary disclosure of Protected Health Information (PHI). HIPAA can also make school district medical records confidential. The extent to which HIPAA applies to make PHI confidential varies by the type of health coverage the district provides. Districts must have a HIPAA Policies and Procedures Manual, even if only to state that it has minimal requirements. Districts must create a wall between an employee’s personnel file(s) and any file containing PHI.

Many districts self insure and use third-party administrators for stop-loss coverage and claims administration. Those districts, by definition, have access to claims and medical history and must fully comply with HIPAA confidentiality requirements. A district somewhat reduces its compliance duties if it purchases a fully insured medical plan that includes health reimbursement, health savings, medical savings or flexible spending accounts or has an employee assistance program. A district that contracts for a fully insured medical plan to handle all applications and claims processing has little medical plan involvement. In this final case, a district must scrupulously protect itself and its employees from receiving employee health information that they are not required to have by law.

If an educator reveals a history of a health condition, such as chronic asthma, to a principal or other employee who has no responsibility for administering a health plan, the information is not confidential under HIPAA. If the educator gives that information to an employee authorized to handle medical claims for the district, the information would become PHI. In districts that must comply with HIPAA confidentiality rules, employees should give information to the HR director or a person designated by the district to receive such information, and the employee should receive a form to sign indicating the extent of the employee’s consent to use of the information.

Appraisal information

“A document evaluating the performance of a teacher or administrator is confidential” (Texas Education Code § 21.355). Documents that evaluate a teacher’s performance include Professional Development and Appraisal (PDAS) records, walk-throughs and growth plans. One court found a principal’s memorandum of a meeting confidential; the principal reported information discussed and received after the meeting concerning the same performance issues, referred to board policies, mentioned the teacher’s PDAS status and issued directives. The memorandum evaluated the teacher because it reflected the principal’s judgment, gave direction and provided for further review.

The Commissioner of Education upheld the termination of a teacher who gave students confidential information taken from a district computer consisting of reprimands of other teachers, saying that releasing such information could compromise the district’s integrity and cause the public, students or employees to lose confidence in the administration.

Informer identity

The Public Information Act prevents districts from disclosing the name of an employee, or information that would substantially identify an employee, who has reported a possible violation of law to the district or a proper enforcement authority.

The Texas Family Code makes confidential the report of a person who complies with the law and reports child abuse (Hotline: 1-800-252-5400). Some district policies require employees to notify a supervisor when they make a report of abuse. The informer identity rule in the Act precludes districts from disclosing the names of employees who report abuse in writing to the district.

A permanent personnel file?

When educators change districts, records sent from one district to the next consist almost exclusively of service records and credentials. New districts may request from the employee some appraisal records, but the rest of the records stay with the old district. Upon leaving a district, an employee can request copies of all documents in the employee’s file, preserving salary information along with staff development records. Districts must comply with record retention policies adopted by the Texas State Library and Archives Commission and can destroy many kinds of employee records in four years or less.

Employment references

References can pose thorny problems. For instance, a former supervisor, without committing slander, can describe facts and provide a negative opinion that can lead a potential employer to reject an employment application. Not only does the law not make that information confidential, it creates a legal privilege protecting the communication. A statement from a former employer to a potential employer who has an interest in information about the employee’s job performance carries a qualified privilege; i.e., the law protects a district’s statement to another district about the reasons for an educator’s release.

A qualified privilege protects information by requiring an employee filing suit to show something much greater than the fact that the supervisor could have or should have held a higher opinion of the employee or that taken as a whole the facts of an employee’s job performance show that the employee did a good job. To overcome a privilege, an educator would have to show that a former supervisor acted with actual malice or in reckless disregard for the truth or falsity of the information disclosed. In short, a privilege justifies communications between principals who have a common interest in an educator’s abilities when one principal reasonably believes that facts exist that the other principal needs to know.

Personal emails

The public does not have a right under the Public Information Act to compel a district to disclose employee emails if employees did not create the emails in their official capacities and the emails do not relate to official district business. If those conditions exist, emails kept electronically in the district’s network do not constitute official district business to which the Act gives the public the right of access.

The fact that the Act does not give the public access to emails containing personal information does not keep administrators from reading them or the district from voluntarily disclosing. If an employee uses a district computer for email, the district can read the e-mail unless the district’s acceptable use policy says otherwise.

The “personal” in personal leave (Texas Education Code § 22.003)

District leave policies, commonly labeled DEC (LOCAL), often say that the district may not restrict the purposes for which employees take personal leave. That provision and the legal definition of the leave as “personal” mean that a district cannot legally require an employee to provide the reason for the five days of leave granted by state law.

If you have any questions regarding confidentiality of your personal information and records, don’t hesitate to contact one of our staff attorneys at 888-879-8282.