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Document Retention and Public Information Issues for Adjunct Faculty April 25, 2014

Document Retention and Public Information Issues for Adjunct Faculty April 25, 2014. Cobby A. Caputo Bickerstaff Heath Delgado Acosta LLP Austin Community College Outside General Counsel. SB 1368 Affirms and Codifies the Attorney General’s Long-standing Interpretation.

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Document Retention and Public Information Issues for Adjunct Faculty April 25, 2014

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  1. Document Retention and Public Information Issues for Adjunct FacultyApril 25, 2014 Cobby A. Caputo Bickerstaff Heath Delgado Acosta LLP Austin Community College Outside General Counsel

  2. SB 1368 Affirms and Codifies the Attorney General’s Long-standing Interpretation • “Public information” includes documents or other information maintained by individual elected officials or public employees on their personal computers, phones, devices, etc, when the documents relate to official business

  3. New Statutory Definitions • “Public information” now includes: • “[e]-mail, Internet posting, text message, instant message, other electronic communication”

  4. New Statutory Definitions • “Official business” is now defined to include: • “any matter over which a governmental body has any authority, administrative duties, or advisory duties”

  5. New Statutory Definitions • Information is “public” if: • [t]he information is created by, transmitted to, received by, or maintained by an officer or employee of the governmental body in the officer's or employee's official capacity, or • By a person or entity performing official business or a governmental function on behalf of a governmental body, and • pertains to official business of the governmental body

  6. Implicates other legal issues • Retention of records according to the Texas Local Government Records Act • Production of records in response to Public Information Act requests • Requests by students to see their “education records”

  7. Document Retention Issues for Adjuncts • What are student records? • FERPA refers to “education records” which are defined as: those records that contain information directly related to a student and which are maintained by an educational agency or institution or by a party acting for the agency or institution.

  8. How long to keep student “education records”? • FERPA does not specify, but defers to state law • In Texas, regulations are promulgated by the Texas State Library and Archives Commission • Unfortunately, different types of records have different retention periods • Faculty grade books: End of academic term + 1 year • Copies of grade reports provided to students: End of academic term + 1 year • Grade appeals or change requests: 1 year after decision on change request • Grade sheets submitted by instructors, advanced credit posting authorizations, and grade rolls or similar input documentation used in posting grades or credit data to transcripts: End of academic year in which data posted to transcripts + 5 years

  9. Document Retention Issues for Adjuncts • Where to keep student “education records”? • Ideally, on ACC computers or systems • Use ACC Email system so all email with students is saved and stored • Avoid texting on your phone for meaningful discussions with students • How to dispose of or destroy student “education records”? • According to ACC’s procedures

  10. ACC Document Management • ACC Records Management Office • Azure Brown – (512) 223-1151, Manager Institutional Records • Compliancehttp://www.austincc.edu/records/retention_schedule/compliance.htm • Retention Schedulehttp://www.austincc.edu/records/records_center/CtrlSched.htm

  11. Why Do We Care? • It’s The Law, and we should always comply with The Law • If the College is found to violate FERPA, it can lose all federal funding • It can also be a crime to destroy public documents • Public Information Act, Texas Government Code § 552.351 • Willful destruction of public information • Misdemeanor – Fine of not less than $25 nor more than $4,000 or confinement in the County Jail for not less than 3 days nor more than three months, or both • Local Records Act, Texas Local Government Code § 202.208 • Failure to comply with the retention requirements of the Act • Class A Misdemeanor – Fine not to exceed $4,000 or confinement in jail for up to one year, or both

  12. Bottom Line • The answer is not determined by where or how the information is created, received, maintained, or archived • The issue is: • Does the document, record, or information relate to “Official business”? or • Is it an “education record” under FERPA? • Always check with ACC Records Management

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