Texas PIA–FERPA Rule: §552.026 Makes FERPA-Permitted Disclosures Discretionary and Eliminates the OAG-Decision Requirement for Withholding Education Records

1. Introduction

This Texas Supreme Court decision arises at the intersection of the federal Family Educational Rights and Privacy Act of 1974 (FERPA) and the Texas Public Information Act (PIA). The respondent, GateHouse Media Texas Holdings II, Inc., d/b/a Austin American-Statesman (the “Statesman”), requested that The University of Texas at Austin disclose the “final results” of certain student disciplinary proceedings involving sex offenses, invoking FERPA’s provision that permits disclosure of limited “final results” information in specific circumstances. The University refused to produce the information and—critically—did so without seeking an Attorney General (OAG) open-records decision before denying the request.

The key issues were:

  • Disclosure duty: Does the PIA require a university to release education-record information when FERPA merely authorizes (but does not require) disclosure?
  • Procedure/OAG decision: If the university withholds such information, must it first request an OAG decision under PIA §552.301—and if it fails to do so, is disclosure compelled by the PIA’s presumption rules?

The Court reversed the court of appeals and rendered judgment for the University, holding that (1) the PIA does not mandate release of the requested records because §552.026 makes release dependent on FERPA’s requirements (not its permissions), and (2) the University was not required to seek an OAG decision before withholding. (Although the prompt lists a later date, the opinion itself states: “OPINION DELIVERED: December 31, 2024”.)

2. Summary of the Opinion

The Court held:

  • PIA §552.026 controls the disclosure obligation: Because §552.026 provides that the PIA “does not require the release” of information in education records “except in conformity with [FERPA],” and FERPA §1232g(b)(6)(B) permits but does not require disclosure of “final results,” the PIA likewise does not require disclosure. Either disclosing or withholding can be “in conformity with” FERPA when FERPA is permissive.
  • No OAG decision required: The OAG-decision requirement in §552.301(a) is triggered only when a governmental body relies on “exceptions under Subchapter C.” Section 552.026 is in Subchapter B. Additionally, §552.114(d) (redaction without requesting an OAG decision) and the practical impossibility of OAG review due to the U.S. Department of Education’s 2006 guidance (preventing record submission to OAG for FERPA determinations) confirmed that an OAG decision was not required here.

The result: the University was entitled to summary judgment, and the Statesman’s mandamus claim failed.

3. Analysis

3.1. Precedents Cited

Tex. Comptroller of Pub. Accts. v. Att'y Gen. of Tex., 354 S.W.3d 336 (Tex. 2010)

The Court cited Tex. Comptroller of Pub. Accts. v. Att'y Gen. of Tex. for the conceptual framework that the PIA recognizes three categories of public information: (1) information required to be disclosed, (2) information excepted from mandatory (but not voluntary) disclosure, and (3) confidential information prohibited from disclosure. Although the quoted passage appears in a dissent in that case, this taxonomy helped the Court explain why “authorized” disclosure is not the same as “required” disclosure.

That framing undercut the Statesman’s position that once FERPA authorizes disclosure, the PIA converts authorization into a mandate. The Court’s approach treats FERPA-permitted disclosures as fitting within the PIA’s “not required, but potentially allowed” space—unless a separate provision makes disclosure mandatory.

Pub. Util. Comm'n of Tex. v. Luminant Energy Co., 691 S.W.3d 448 (Tex. 2024)

The Court relied on Pub. Util. Comm'n of Tex. v. Luminant Energy Co. for a core interpretive principle: statutory text must be read in context and harmonized across the statute rather than read in isolation. That principle was decisive because the dispute had focused heavily on §552.114(b), but the Court held that the analysis cannot ignore §552.026’s broader, chapter-wide command concerning education records.

656 S.W.3d 791 (Tex. App.—El Paso 2022)

The Court reversed the court of appeals’ majority view that §552.114(b)’s second sentence effectively required disclosure of FERPA-authorized “final results.” Instead, the Court aligned with the dissent’s reasoning that §552.026 means the PIA does not impose a disclosure obligation unless FERPA itself requires disclosure. The dissent’s interpretive emphasis on the meaning of “in conformity with” provided a template the Court adopted.

3.2. Legal Reasoning

(a) The controlling statute is §552.026, not a decontextualized reading of §552.114(b)

The Court intentionally did not decide the “exact meaning” of §552.114(b) in isolation. Instead, it treated §552.026 as the controlling harmonizing provision because it applies to “this chapter” (the entire PIA). In plain terms:

  • §552.026: the PIA “does not require” release of FERPA education-record information “except in conformity with” FERPA.
  • FERPA §1232g(b)(6)(B): “Nothing in this section shall be construed to prohibit” a postsecondary institution from disclosing “final results” when the disciplinary proceeding involves a crime of violence or nonforcible sex offense and the allegation is found to have merit.

Because FERPA is permissive here (it authorizes but does not compel disclosure), the Court reasoned that either choice—disclose or withhold—can still be “in conformity with” FERPA. Therefore, the PIA’s default duty of disclosure does not attach.

(b) “Liberal construction” cannot override unambiguous text

The Statesman leaned on the PIA’s policy statements that the statute should be “liberally construed in favor of granting a request for information.” The Court rejected that as a basis to expand duties beyond the statute’s “plain language,” citing interpretive limits recognized in ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS: purpose clauses can clarify ambiguity but cannot expand text beyond its permissible meaning.

(c) The OAG-decision requirement is not triggered by §552.026, and §552.114(d) plus federal constraints confirm no OAG step is required

The Court gave two reinforcing reasons the University was not required to seek an OAG decision:

  1. Textual trigger in §552.301(a): OAG review is required when the governmental body seeks to withhold information it considers within “exceptions under Subchapter C.” Section 552.026 is in Subchapter B. So §552.301(a) does not apply.
  2. Practical/legal impossibility of meaningful OAG review: The Court recognized the 2006 U.S. Department of Education letter advising “FERPA does not permit” disclosure of education records to the OAG for PIA review without consent, and noted OAG’s practice of refusing to review FERPA-covered records. In that reality, forcing a request for an OAG decision would be an empty formality. The Court therefore held that “in these circumstances,” §552.114(d) negates any obligation to seek an OAG decision before withholding under §552.114(b).

3.3. Impact

The decision establishes a clear, institution-protective operational rule for Texas public universities responding to open-records requests for FERPA-covered education records:

  • No “authorization-to-mandate” conversion: When FERPA merely permits disclosure, the PIA does not thereby require disclosure. Requestors cannot rely on the PIA’s general pro-disclosure policy to compel release absent a FERPA requirement or another Texas-law mandate.
  • Reduced procedural leverage for requestors: The common PIA litigation lever—arguing that failure to seek an OAG decision triggers the §552.302 presumption of required disclosure— is substantially weakened in the education-record context when the withholding is justified under §552.026 (Subchapter B) and/or within the Court’s understanding of §552.114(d).
  • More discretion, more variance: Institutions may adopt differing disclosure practices about FERPA-permitted “final results,” potentially producing nonuniform transparency across Texas. Future disputes may shift from “must you disclose?” to “did you exercise discretion lawfully/nonarbitrarily?”—though the PIA generally does not police discretionary withholding in the same way it polices mandatory disclosure.
  • Broader interpretive signal: The Court’s emphasis on statutory harmony and plain meaning suggests that where the PIA includes other “except in conformity with federal law” provisions, Texas courts may similarly treat federal permissive disclosure regimes as not creating Texas mandatory duties.

4. Complex Concepts Simplified

  • FERPA “education records”: Broadly, records maintained by an educational institution that directly relate to a student, including disciplinary records. FERPA’s mechanism is indirect: it conditions federal funding on compliance rather than creating a direct “privacy right” remedy in this opinion’s analysis.
  • FERPA “final results” exception: For certain serious misconduct findings, FERPA allows release of limited items (name, violation, sanction), but does not require release to the public.
  • PIA disclosure rule vs. exceptions: The PIA starts with “public information is available,” then provides exceptions. Some exceptions make information confidential (cannot be released); others merely make it not required to be released.
  • OAG decision process: Normally, a governmental body that wants to withhold under Subchapter C must ask the OAG quickly; if it does not, a presumption may arise that the information must be released. This case holds that mechanism is not triggered when the relevant basis is §552.026 (Subchapter B) and, in context, when FERPA prevents OAG from reviewing the education records.
  • “In conformity with”: The Court treated this phrase as meaning “consistent with.” If FERPA gives an institution a choice (disclose or not), both choices are consistent with FERPA—so Texas law cannot claim it “requires” disclosure.

5. Conclusion

The Court’s central contribution is a clarifying rule of Texas open-records law for universities: PIA §552.026 prevents Texas law from mandating release of FERPA education-record information when FERPA itself is permissive rather than mandatory. As a procedural corollary, the Court held that an educational institution in this posture need not obtain an OAG decision before withholding, given §552.301(a)’s Subchapter C limitation and the practical reality that the OAG will not (and, under federal guidance, cannot) adjudicate FERPA applicability by reviewing the underlying records.

In the broader transparency-versus-privacy balance, the decision shifts power toward educational institutions’ discretion and away from requestor-driven enforcement via OAG procedural defaults, while reaffirming the Court’s preference for plain-language statutory interpretation over general pro-disclosure policy arguments.