Newspaper seeks mandamus over school's failure to release public records

Kelly Holleran Feb. 3, 2009, 2:00pm

A Southeast Texas newspaper has been trying to get student test scores from a Port Arthur school for almost a year, and has now asked the courts to step in and order the school to comply with its request.

Hearst Newspapers II LLC, doing business as the Beaumont Enterprise, has petitioned Jefferson County District Court Judge Donald Floyd for a writ of mandamus against Tekoa Academy of Accelerated Studies.

According to the petition filed Jan. 28, the school has not released student scores from the Texas Assessment of Knowledge and Skills which the paper requested under the Public Information Act.

"The Enterprise brings this action to protect its right of public access," the petition states. "As a publicly funded school, Tekoa must comply with the Public Information Act."

Enterprise reporter Emily Guevara requested the reading scores of third-, fifth- and eighth-graders and the math scores of fifth- and eighth-graders for the 2007-08 school year in a Public Information Act request on April 23.

The Port Arthur charter school has around 400 students in grades pre-kindergarten to 11.

At first, Tekoa stated it would release test scores after all testing and re-testing was administered, the suit states.

But after the Enterprise explained that Tekoa could not withhold the test scores, Tekoa sought an opinion from the attorney general's office in a May 19 letter.

"In its letter, Tekoa stated that the requested information is 'inherently confidential' and 'section 552.101 excepts to the disclosure, that the information is protected under Chapter 39 of the Education Code and not subject to disclosure pursuant' to the federal Family Education Rights and Privacy Act," the suit states.

The paper countered Tekoa's argument in its own letter to the AG, based on Tekoa's previous claim that the dispute was over timing, not confidentiality.

However, the attorney general's office declined to decide whether the requested information was required to be disclosed, the petition states.

"Because our office is prohibited from reviewing education records, we will not address the applicability of FERPA to the information at issue," the office wrote in its ruling.

The Enterprise contends it sought only information that should be public knowledge and that FERPA is inapplicable because the newspaper's request does not involve information about individual students.

"Under the Public Information Act, information contained in education records is subject to disclosure in accordance with FERPA," the Enterprise states. "Consistent with FERPA and the PIA, Tekoa must produce all requested information and where necessary redact individually identifying information."

The paper also asserts that Tekoa must release the scores because it failed to request a decision from the attorney general's office within 10 days of the Enterprise's Public Information Act request as required.

In addition to the release of the test scores, the Enterprise is seeking reasonable attorneys' fees, costs of litigation and other relief to which it may be entitled.

Jonathan Donnellan and Courtenay O'Connor of the Office of General Counsel for the Hearst Corp. in New York and James W. Mehaffy of Beaumont are representing the paper.

Case No. E183-139

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