Tarleton State University v. Foundation for Individual Rights and Expression

ACCEPTED 15-24-00057-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 3/4/2025 2:20 PM No. 15-24-00057-CV CHRISTOPHER A. PRINE CLERK

In the Fifteenth Court of Appeals Austin, Texas

TARLETON STATE UNIVERSITY, Appellant and Cross-Appellee, v. F OUNDATION FOR I NDIVIDUAL R IGHTS AND E XPRESSION , Appellee and Cross-Appellant.

On Appeal From Cause No. CV37178 In the 266th Judicial District Court of Erath County, Texas, Honorable Jason Cashon, Presiding Judge APPELLANT’S SUPPLEMENTAL BRIEFING KEN PAXTON KIM GDULA Attorney General of Texas Division Chief General Litigation Division BRENT WEBSTER First Assistant Attorney General ALYSSA BIXBY-LAWSON Assistant Attorney General RALPH MOLINA State Bar No. 24122680 Deputy First Assistant Attorney [email protected] General Office of the Attorney General P.O. Box 12548 (MC 059) AUSTIN KINGHORN Austin, Texas 78711-2548 Deputy Attorney General for Civil Tel.: (210) 270-1118 Litigation Fax: (512) 474-2697 Counsel for Appellant

Oral Argument Requested To the Honorable Fifteenth Court of Appeals: The Supreme Court of Texas issued an opinion on December 31, 2024, addressing how the federal Family Educational Rights and Privacy Act of 1974 (“FERPA”) and Texas’ Public Information Act (“PIA”) intersect under circumstances substantially similar to this case. Univ. of Texas at Austin v. GateHouse Media Texas Holdings II, Inc., No. 23-0023, 2024 WL 5249449 (Tex. Dec. 31, 2024). The opinion contradicts the trial court’s decision to grant Foundation for Individual Rights and Expression (“FIRE”)’s summary judgment and deny Tarleton State University’s summary judgment.

ARGUMENT This appeal arises out of competing motions for summary judgment re- lated to FIRE’s writ of mandamus suit to compel the University to publicly disclose requested student records under the PIA. In granting FIRE’s sum- mary judgment and denying the University’s, the trial court explicitly stated that it thought the El Paso appellate court’s opinion in Univ. of Texas at Aus- tin v. GateHouse Media Texas Holdings II, Inc., 656 S.W.3d 791 (Tex. App.— El Paso, 2022), “was right” so it “ruled in accordance with the El Paso opin- ion.” RR5 at 1−4. The Supreme Court overturned that El Paso opinion, and this Court should overturn the trial court’s erroneous judgement in this case.

1. GateHouse allows universities to withhold FERPA-protected documents without seeking an Attorney General decision.

In Gatehouse, the Supreme Court held that the PIA did not require the University to obtain a decision from the Office of the Attorney General (“OAG”) before refusing the newspaper’s request for student education records. 2024 WL 5249449 at *1, 8. In finding that the trial court and appel- late court erred by construing the PIA to require disclosure of the infor- mation, the Supreme Court held that Section 552.026 grants an educational institution discretion whether to disclose information in an education record if the disclosure is authorized by FERPA. Id. at *7. The Supreme Court con- cluded that the PIA authorized the University’s refusal to produce infor- mation without an Attorney General decision and, therefore, the trial court should have granted the University’s motion for summary judgment. Id. The Supreme Court cited the U.S. Department of Education’s 2006 let- ter to the OAG, in which the Department communicated that “FERPA does not permit an educational agency or institution in Texas to disclose, without parental consent, education records to the OAG for the purpose of determin- ing whether it has complied with the PIA or whether it has redacted more than is necessary under FERPA.” Id. The Supreme Court agreed that Section 552.114(d) negates the obligation to seek an Attorney General decision before withholding information under Section 552.114(b). Id. 2. GateHouse allows universities to withhold requested docu- ments in their entirety without redactions.

The Supreme Court further held that the PIA allowed the University to withhold the requested information in its entirety. Id. The Supreme Court reasoned that “[i]f Section 552.114(b) authorizes the University to withhold the requested information, as it argues and the court of appeals’ dissent con- cluded, then the redaction provision in Section 552.114(d) may negate the obligation to seek an OAG decision before withholding documents un- der Section 552.114(b).” Id. Producing documents consisting of pages of black bars without any text without seeking an OAG decision “is the same as producing nothing without seeking an OAG decision.” Id. 3. The trial court’s reliance on the El Paso appellate court’s GateHouse decision was in error, and its decision should be reversed.

For the same reasons recognized by the Supreme Court in Gatehouse, Appellant Tarleton State University established its entitlement to judgment as a matter of law, and the trial court’s decision should be reversed. The Uni- versity refused to produce certain requested documents without requesting an Attorney General decision. CR138−44. The University did so after it de- termined that the requested documents were education records “confidential and excepted from the requirements of Section 552.021” and 552.114(b) and prohibited from disclosure by FERPA. Id. It produced evidence to the trial court in the form of an affidavit from its Public Information Act Coordinator confirming that the University had determined that the student records in question were protected by FERPA. CR155−61. Disclosure would reveal not just personally identifiable information that could be redacted, but that the disclosure of any part of the document would reveal the identity of the stu- dent or students to which the records pertain. CR155−61.

In granting FIRE’s motion and denying the University’s, the trial court found that the University “didn’t follow the procedures.” RR3 18:8−19. That was incorrect for at least four reasons.

First, under GateHouse, the University did not have an obligation to seek an Attorney General decision before withholding the documents re- quested by FIRE. 2024 WL 529449 at *7 (“Because the DOE has determined that educational agencies and institutions are in the best position to make determinations under FERPA, such agencies and institutions may withhold from public disclosure personally identifiable information in education rec- ords without the necessity of requesting an attorney general decision.”) (re- lying on OAG guidance). The University properly withheld the documents without seeking an Attorney General decision.

Second, under GateHouse, the University was not required to redact or produce any student record if the disclosure—even with redactions—would reveal students’ personally identifiable information. Id. at *3, 7. The Univer- sity presented evidence to the trial court that the documents could not be produced with redactions because it reasonably believed the disclosure would reveal the identity of the student because FIRE knows the identity of the student or students to whom the education records relate. CR157−58. The University properly withheld the documents in their entirety.

Third, the Supreme Court affirmed that the University (and only the University) has the discretion to determine whether the requested docu- ments fall within the purview of FERPA prohibitions. 2024 WL 529449 at *7. The University explained that, within its discretion, it determined that certain documents did. CR155−61. For those documents not exempted from disclosure, the University provided documents responsive to the request.

CR157−59. For the remaining documents determined to be protected by FERPA and 552.114 from disclosure , the University properly withheld—in their entirety—the documents that would reveal the identity or identities of students if disclosed, i.e., the proper “procedure” affirmed by the Supreme Court in Gatehouse.

Fourth, the University did not need to demonstrate a compelling reason to withhold the documents because the University did not “fail” to request an Attorney General decision. Under section 552.302, if a governmental body fails to seek a decision from the Attorney General, the information is “presumed to be subject to required public disclosure and must be released unless there is a compelling reason to withhold the information. Tex. Gov’t Code § 552.302. Under GateHouse, the University did not—and could not— have requested an Attorney General decision, 2024 WL 529449 at *7, and thus did not “fail” to seek it. Nevertheless, the University preserved its com- pelling interest argument, and the trial court failed to make a proper deter- mination on this issue. CR349−50, 364−65.

CONCLUSION AND PRAYER In light of the Texas Supreme Court’s guidance in Gatehouse, the Court should reverse the trial court’s final judgment and find that the University properly withheld the requested documents which constitute education rec- ords under FERPA and student records under Texas Government Code Sec- tion 552.114 and render judgment for the University.

Respectfully submitted.

KEN PAXTON Attorney General of Texas BRENT WEBSTER First Assistant Attorney General RALPH MOLINA Deputy First Assistant Attorney General AUSTIN KINGHORN Deputy Attorney General for Civil Litigation KIMBERLY GDULA Chief, General Litigation Division /s/ Alyssa Bixby-Lawson ALYSSA BIXBY-LAWSON Attorney-in-Charge Texas Bar No. 24122680 Assistant Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (210) 270-1118 | FAX: (512) 320-0667 [email protected] Counsel for Appellant Tarleton State University

CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 4th of March, 2025, the foregoing Appellant’s Supplemental Briefing was filed with the Clerk of this Court and served on the following via EFileTexas.gov efiling service.

J. T. Morris Gabriel Waters Foundation for Individual Rights and Expression Walnut Street, Suite 1250 Philadelphia, PA 19106 (215) 717-3440 [email protected] [email protected] [email protected]

/s/ Alyssa Bixby-Lawson Alyssa Bixby-Lawson Assistant Attorney General

Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Victoria Gomez on behalf of Alyssa Bixby-Lawson Bar No. 24122680 [email protected] Envelope ID: 98048467 Filing Code Description: Other Brief Filing Description: 20250304_TSU Supplemental Briefing _final Status as of 3/4/2025 2:31 PM CST Associated Case Party: Member of the Public (MOTP) Name BarNumber Email TimestampSubmitted Status Wolfgang Hirczy de Mino [email protected] 3/4/2025 2:20:15 PM SENT

Associated Case Party: WolfgangP.Hirczy de Mino Name BarNumber Email TimestampSubmitted Status Wolfgang PHirczy de Mino [email protected] 3/4/2025 2:20:15 PM SENT

Associated Case Party: FIRE Name BarNumber Email TimestampSubmitted Status Gabriel Walters [email protected] 3/4/2025 2:20:15 PM SENT JT Morris [email protected] 3/4/2025 2:20:15 PM SENT

Associated Case Party: TARLETON STATE UNIVERSITY Name BarNumber Email TimestampSubmitted Status Alyssa Bixby-Lawson [email protected] 3/4/2025 2:20:15 PM SENT Victoria Gomez [email protected] 3/4/2025 2:20:15 PM SENT