TEX. ATT. GREG ABBOTT: RIGHT OF PUBLIC TO SEE SCHOOL LESSONS

Jan 24, 2014 by

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“TAG Opinion on TESCCC/CSCOPE”

By Donna Garner

1.23.14

 

Based upon legal advice received today, I believe that my comments were accurate that I sent out yesterday (excerpts posted at the bottom of this page) and that I also stated last night on the Alice Linahan Community Conversations podcast regarding the Texas Attorney General’s opinion on the TESCCC/CSCOPE — https://soundcloud.com/alice-linahan/women-on-the-wall-wednesday

 

The TAG’s Opinion is No. GA-1038. Here is the URL to the TAG’s opinion issued on 1.21.14: https://www.oag.state.tx.us/opinions/opinions/50abbott/op/2014/pdf/ga1038.pdf

 

Here is the URL to Tex. Sen. Robert Duncan’s request to the Texas Attorney General for the TESCCC/CSCOPE opinion: https://www.oag.state.tx.us/opinions/opinions/50abbott/rq/2013/pdf/RQ1140GA.pdf

 

Because there were questions raised in front of the Senate Education Committee and the Texas State Board of Education as to public access, ownership, and disposal of the CSCOPE lesson plans, Sen. Robert Duncan filed his request to the TAG.   

 

Now the TAG has made it very clear in its opinion that the TESCCC/CSCOPE lesson plans are definitely public property with public access permitted.

 

According to the TAG opinion, it sounds to me as if the TAG believes the Education Service Centers (ESC) still own CSCOPE and cannot just exit the lesson plans by saying that TESCCC (the now dissolved nonprofit) is a thing of the past.  

 

[I am thinking that if Texas State Auditor John Keel finds discrepancies in his audit of the TESCCC, this TAG ruling may mean that the ESC’s can be held accountable. At least I hope this is the case.]

 

The TAG opinion also states that if the ESC’s have copies of the CSCOPE lesson plans, those are now considered to be totally in the public record for any and all to see.

 

The TAG’s reference to TEC26.006 clearly shows that parents specifically have a right to view any instructional materials used in their child’s classroom.   

 

I believe the TAG opinion also sets precedent that the public has the right to scrutinize whatever the Education Service Centers produce in the TEKS Resource System (or TASA iCloud, Mentoring Minds, Safari Montage, Common Core-aligned instructional materials, etc.). This also applies to all digitized instructional materials.  In other words, a corporation cannot set itself up, produce instructional materials, and then tell the public that those materials have to be kept secret because they are the product of a private entity.   

 

SENT OUT BY DONNA GARNER YESTERDAY ON 1.22.14

 

“Texas Attorney General: Opinion on CSCOPE Lesson Plans” – 1.21.14

 

[From Donna Garner  — 1.22.14 — *Note: The TAG’s opinion was formatted as a pdf, and I have tried to cut/copy/paste it below.  If you wish to read the entire opinion in its final form, please go to:  https://www.oag.state.tx.us/opinions/opinions/50abbott/op/2014/pdf/ga1038.pdf

 

 

To read the entire Texas Attorney General opinion, please go to this link:

https://www.oag.state.tx.us/opinions/opinions/50abbott/op/2014/pdf/ga1038.pdf

 

 

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

The Honorable Robert Duncan

Chair, Committee on State Affairs

Texas State Senate

Post Office Box 12068

Austin, Texas 78711-2068

 

Dear Senator Duncan:

January 21, 2014

Opinion No. GA-1038

 

Re: Whether statutory records retention requirements apply to model lesson plans

developed and maintained by the Texas Education Service Center Curriculum

Collaborative (RQ-1140-GA)

 

You ask five questions about “whether model lesson plans developed by the Texas

Education Service Center Curriculum Collaborative (“TESCCC” or “the collaborative”) are

subject to the records retention requirements applicable to local governments and/or those applicable to state agencies.”1

 

As background, you explain that ten of the state’s twenty regional education service centers (“ESCs”) entered into “an interlocal agreement, formally creating the TESCCC” as a nonprofit corporation. Request Letter at 2.

 

Through that nonprofit,, the ESCs pooled their resources to develop a curriculum management program, which included providing “exemplar lesson plans … to the member school districts.” !d.

 

You tell us that TESCCC “voted to discontinue providing lesson plans,” and you explain that “questions have arisen regarding how to handle the discontinued lessons.” Id.

 

Your first and second questions ask whether “the lesson plans maintained by TESCCC

and/or the member ESCs” are considered state government records, subject to chapter 441 of the Government Code, or local government records, subject to the Local Government Records Act. Jd.

 

With regard to TESCCC, you tell us that in May of this year, the board of directors of TESCCC voted to “dissolve the nonprofit and wind up its affairs,” and the curriculum management program will now be managed by the regional ESCs through a shared service arrangement. !d. By dissolving itself and transferring management to the ESCs, it would appear that TESCCC has relinquished control of the curriculum and affiliated lesson plans to the ESCs.

 

1

Letter from Honorable Robert Duncan, Chair, Senate Comm. on State Affairs, to Honorable Greg Abbott, Tex. Att’y Gen. at I (July 23, 2013), http://www.texasattomeygeneral.gov/opin (“Request Letter”). The Honorable Robert Duncan – Page 2 (GA-1038)

 

Any ongoing retention obligations belong to the ESCs, and we will therefore answer your

questions only with regard to the ESCs.

 

Government Code chapter 441, subchapter L addresses the preservation and management of the records of a “state agency,” defined for purposes of subchapter L to include “any department, commission, board, office, or other agency in the executive, legislative, or judicial branch of state government created by the constitution or a statute of this state.” TEX. Gov’T CoDE ANN.§ 441.180(9)(A) (West ;2012); see also id §§ 441.180-.205. The Local Government Records Act addresses the preservation and management of the records of a “local government,” defined for purposes of that Act as “a county, … municipality, public school district, appraisal district, ‘or any other special-purpose district or authority.” TEX. Loc. Gov’T CODE ANN. § 201.003(7) (West 2008). To answer your questions, we must therefore determine whether ESCs are state agencies or local governments.

 

The Legislature has directed the Texas State Library and Archives Commission (the

“Commission”) to “administer the state records management program” and to “administer programs to carry out the duties” of the Commission under the Local Government Records Act. TEX. Gov’T CODE ANN. §§ 441.002(g)(4), .152, .182(b) (West 2012). As the agency charged with administration of the Local Government Records Act, the Commission’s reasonable construction of the statute is entitled to deference so long as it does not contradict the statute’s plain language. See State v. Pub. Uti/. Comm ‘n of Tex. 344 S.W.3d 349, 356 (Tex. 2011). In a brief submitted to this office in response to your request, the Commission advises that it considers ESCs local governments subject to the Local Government Records Act, explaining that it equates ESCs to “special-purpose districts or authorities’ under Local Government Code section 20 1.003(7)_2 While the law governing ESCs doe not clearly categorize these entities as either state agencies or local governments, we cmmot conclude that the Commission’s categorization of them as local governments is unreasonable or contrary to the statutory text.

 

Thus, a court would have reason to defer to the Commission’s conclusion that the lesson plans maintained by ESCs are local government records subject to the Local Government Records Act.

 

Your third question asks whether the lesson plans are “subject to any of the other

retention requirements of Chapter 441 of the Government Code.” Request Letter at 3. Along with the Local Government Records Act, Government Code chapter 441, subchapter J addresses the preservation and management of local government records. TEX. Gov’T CODE ANN. § § 441.151-.168 (West 20 12). Most of the provisions in subchapter J address the authority and duties of the Commission director and librarian. ld. To the extent that the provisions address local government records, however, the ESCs are subject to chapter 441, subchapter J. See, e.g., id. § 441.168(a) (authorizing a local government to request the Commission to provide microfilming or storage of local government records). 2 Brief from Edward Seidenberg, Interim Dir. & Librarian, Tex. State Library and Archives Comm’n at 1 (Aug. 13, 2013) (on file with Op. Comm.) (“Commission Brief’). The Honorable Robert Duncan – Page 3 (GA-1038)

 

Your fourth question asks which of the retention schedules adopted by the Commission

applies to the lesson plans and what is the minimum retention time under that schedule. Request Letter at 3. Government Code subsection 441.158(a) requires the Commission to “prepare and distribute … records retention schedules for each type of local government.” TEX. Gov’T CoDE ANN. § 441.158(a) (West 2012). Pursuant to this duty, the Commission has published Local Schedule SD, which “sets mandatory minimum retention periods for records … commonly found in local education agencies,” expressly including “regional educational service centers.” 13 TEX. ADMIN. CODE § 7.125(a)(6). Under the Local Schedule SD, “lesson plans” must be maintained for “as long as administratively valuable.” In addition to the requirements of the Local Government Records Act, parents of Texas public school children have an absolute right of access to teaching materials used in the classroom of the parents’ child. TEX. Eouc. CODE ANN. § 26.006(a) (West 2012). Any final disposition of the lesson plans about which you ask must comply with this statute.

 

Your final question assumes that the lesson plans are not subject to any statutory records

retention provisions. Request Letter at 3. Because the lesson plans maintained by ESCs are subject to statutory records retention provisions, we do not answer your fifth question. The Honorable Robert Duncan – Page 4 (GA-1038)

 

 

 

SUMMARY

A court would have reason to defer to the conclusion of the State Library and Archives Commission that the model lesson plans maintained by Regional Education Service Centers are local government records subject to the local Government Records Act.

 

In addition Education Service Centers must comply with Government Code chapter 441, subchapter J with regard to the maintenance of model lesson plans. The State Library and Archives Commission’s Local Schedule SD applies to” the retention of lesson plans maintained by Regional Education Service Centers. Local Schedule SD requires that lesson plans be maintained for as long as administratively valuable. Any final disposition of lesson plans must comport with the absolute right of parents to access teaching materials used in the classroom of the parents’ child pursuant to subsection 26.006(a) of the Education Code.

 

DANIEL T. HODGE

First Assistant Attorney General

 

JAMES D. BLACKLOCK

Deputy Attorney General for Legal Counsel

 

VIRGINIA K. HOELSCHER

Chair, Opinion Committee

 

Virginia K. Hoelscher

Assistant Attorney General, Opinion Committee

 

 

Very truly yours,

 

Greg Abbott

Attorney General of Texas

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