By Kevin Lungwitz
It is not unusual for a campus administrator to receive a subpoena or public records request. Subpoenas for documents or witnesses are usually issued in the course of formal legal proceedings by lawyers or a judge. Subpoenas for documents can also be issued to the school by the Texas Education Agency in a disciplinary investigation. Public records requests can be issued by anyone, any time. A quick note about both: Always let your supervisor know if you receive a subpoena or a public records request as both have legal implications that are usually best left to the school’s lawyer or another employee to figure out and fulfill.
Texas Public Information Act
Anyone can request public records from a public entity like a school district. Pursuant to the Texas Public Information Act (TPIA), a requestor may email, fax, hand deliver or send the request by U.S. Mail. There is no particular format for doing so, and you do not need to be a lawyer to make a request. The Texas Attorney General’s website has very good information for making and responding to public information requests.¹
If you receive a request for public information, you should immediately forward it to the school district’s public information office or officer. If your district does not have a public information office or officer, forward the request to the superintendent, who is by law the district’s custodian of records. Do not attempt to fulfill a public information request on your own. There are nuances and exceptions to what documents are considered public, and it is important to get it right. There are also important timelines by which the district must file an objection with the Attorney General if it seeks to withhold certain documents.
A Cautionary Word: Follow the New York Times (NYT) Rule, Even When Texting about Work
As a public school employee, you already know your professional written communications are disclosable to someone (i.e., to the child/parent/staff member in question and also to your supervisors with a need to know) even if not disclosable to the public at large. Most have learned over the last couple of decades to carefully write memos and business emails. We have a gut feeling those might be requested by a lawyer, a concerned parent or the media; or that our supervisors might review them. Whether it is deliberate or not, we are following the New York Times rule: Don’t write it if you wouldn’t be proud to see it on the front page of the NYT.
However, some administrators and teachers think texting is a good work-around. Instead of blowing off steam in an email, the principal goes home at night, on her own phone and Internet provider, and sends an unvarnished, work-related text to her trusted assistant principal. It is possible this text message—even one sent after-hours on a private phone—might have to be disclosed pursuant to the TPIA or a subpoena if it is business-related. The characterization as “public information” does not rest with where the information is stored or kept.² If it is business-related, it may have to be disclosed. Reminder: Always follow the NYT rule.
Preserving Work-Related Communications
To complicate matters, there are laws about preserving public information. Memos and emails created at work are likely preserved on the district’s server, as well as in hard files. But what about work-related information on your phone? Maybe it is automatically backed-up on the district’s server, if the district provides the phone and the service. (You should confirm this with the I.T. department.) But if you maintain public information on your private device, you must either transfer the information to the school district or district server to be preserved as required by the TPIA or preserve the information in its original form in a backup on the privately-owned device, in accordance with required retention periods.³ This is admittedly confusing and complicated. Therefore, it is probably best not to use your private phone for business-related texting. Instead, stick to the school district email system for electronic, written communications.
A Lawyer has Subpoenaed Student Records!
As stated above, a school employee should consult with the school lawyer, if possible, before tendering subpoenaed documents. Among other considerations, FERPA (the federal law regarding the confidentiality of student records) needs to be reviewed if the records sought may include the records of students, other than the student in question.⁴
For Cryin’ Out Loud, I’ve Been Subpoenaed
A parent or guardian sees their child a couple of hours in the morning, and a few hours in the evening, before the student goes to bed. School employees spend anywhere from seven to 10 hours a day with a child. This is why school employees are sometimes subpoenaed in family law cases. If you are subpoenaed, always inform your supervisor and/or the school lawyer. In court, you most likely will not be asked to choose sides, nor should you feel the pressure to do so. Usually the information sought will be factual, such as:
- How the child is doing in school;
- The attendance record of the child;
- Whether the child gets to school on time;
- Who brings the child to school on days when s/he’s late?
- Whether either parent has ever been late picking the child up from school; if so, how often, when, why?
- Is the child clean and appropriately dressed when s/he comes to school?
- Who typically signs homework, report cards?
- Who comes to parent/teacher conferences?
- How does the child react when Mom/Dad picks them up from school?
- Each parent’s level of involvement at school;
- Any concerns about Mom or Dad?
- Does the child appear to have a preference for Mom or Dad?
Your answers to these questions may influence the court, so the court can make an informed decision. Don’t be overly anxious about testifying. Just answer the questions truthfully. It is the unwise lawyer who harshly cross-examines a teacher or campus administrator. Courts love knowledgeable school employees who can help the court cut through the emotional fog of the case. Family law authors have put it this way:
School employees play a unique role, because everyone knows you have already devoted your life to the service of others. Testifying in court is just an infrequent extension of that service. You have information about how the child is adjusting, not only because you know about the child’s academic performance, but also because you spend lots of time with the child. You are not expected to take the stand and testify “for” one of the parents. You are expected to testify about the child, so that the court may do what is in the child’s best interest. Keeping that in mind may make what at first seems like an unpleasant, intimidating or boring experience, a rather important and honorable one.⁵
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
²See Tex. Att’y Gen. OR 2003-0951 (2003)
3Tex. Gov’t Code § 552.004(b)
⁴The school lawyer should be aware that documents filed in a suit arising under the Texas Family Code are not considered “court records.” Tex. R. Civ. Proc. 76a(2)(a)(3). Rule 76a also excepts from court records “documents in court files to which access is otherwise restricted by law,” which would include documents rendered confidential by FERPA and the Texas Public Information Act. If the documents in question are not “court records” a Rule 76a hearing is not necessary. See General Tire, Inc. v. Kepple, 970 S.W.2d 520, 525, 41 Tex. Sup. Ct. J. 895 (Tex. 1998).
⁵Kevin Lungwitz & Jeana Lungwitz, Texas Family Law for School Administrators, Teachers & Lawyers, Park Place Publications, 2012, p. 82.
TEPSA News, May/June 2020, Vol 77, No 3
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Note: Information from Legal Ease is believed to be correct upon publication, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
