Last month, we discussed the process for responding to a subpoena for records or testimony served on a government entity by a court or attorney. However, several state agencies in Texas also have the power to obtain subpoenas for documents of employees who are licensed through the agency. For example, the Texas Education Agency can subpoena documents from school districts that relate to a licensed teacher, administrator, or paraprofessional, and the Texas Board of Nursing can subpoena records related to licensed nurses. Government entities that employ state license holders may receive a subpoena or other records request from the licensing agency when the licensee is under investigation for misconduct, or when the licensing agency intends to sanction or revoke the licensee’s certification. This article discusses the processes applicable when a state agency requests records of a licensee from a government entity.

When a holder of a state license is accused of misconduct that could affect his or her licensure, the licensing agency will often conduct an investigation, and, if necessary, initiate proceedings to discipline the licensee. During this process, the licensing agency will usually need documents from the licensee’s employer or former employer. These documents may include investigation reports, performance evaluations, records of disciplinary action taken, and simple personnel information such as correct name, address, phone number, and dates of employment.

Not all state agencies have, or choose to use, the subpoena power to obtain documents related to a licensee’s employment and potential misconduct. Many times, the licensing agency will simply request documents through a standard public information request pursuant to the Texas Public Information Act (TPIA), Section 552 of the Texas Government Code. If this occurs, the government employer receiving the request should abide by the requirements of the TPIA, including the requirement that the entity respond to the request within 10 business days. However, by proceeding under the TPIA, the agency requesting the records may be limiting the amount of information it can obtain because the TPIA contains numerous confidentiality provisions that exempt certain records from release. For example, through the Texas Education Code, the TPIA protects documents that evaluate a certified teacher or administrator. Therefore, the Texas Education Agency likely does not have the authority to access teacher evaluations pursuant to a public information request. A subpoena would be required in these cases.

Frequently, a licensing agency that submits a TPIA request to a government entity is still investigating alleged misconduct, and is therefore not seeking confidential information.  Thus, the government employer receiving the request should ask the requesting agency to clarify whether it seeks certain confidential information. If not, that information can be redacted or withheld prior to complying with the TPIA request. However, if the agency insists on receiving confidential information, the government employer should request citation to the law permitting the agency special access to that confidential information. If the licensing agency cannot provide this citation (which it often cannot—state agencies frequently erroneously state they have a special right of access to documents), the government entity should proceed with a request for a ruling from the Attorney General as to whether the information must be released. Legal counsel can assist with this process.

State agencies are increasingly utilizing their power to obtain subpoenas for the records of licensees. These subpoenas are usually less cumbersome for the government entity/employer than TPIA requests because subpoenas leave little room for exceptions—the government entity must comply. When a subpoena is received, the government entity should first contact the investigator who obtained the subpoena in order to make sure the entity understands exactly what information is being requested. If additional time is required to compile the records, the entity should ask for an extension to comply with the subpoena—one or two weeks is typically reasonable. This extension should be obtained in writing. If information protected by HIPAA or FERPA is contained within the documents requested, the entity should discuss with the investigator to determine if such information is actually needed. This information usually is needed because it serves to identify witnesses to or victims of the licensee’s alleged misconduct. FERPA requires a school to send the parent or eligible student a letter explaining that the student’s information has been subpoenaed, and that the school intends to comply with the subpoena unless the parent/student moves to quash the subpoena. If the parent/student does move to quash the subpoena, the parent/student must provide the school a copy of the motion. The school should then contact the office of the assigned administrative law judge for instructions on how to proceed.

In the event the government entity needs to quash the subpoena to avoid producing records, legal counsel should file a motion with the administrative law judge assigned to the licensee’s hearing. However, the law is particularly unclear about how to avoid compliance with a subpoena issued in the investigative stage, before a formal proceeding has been initiated. Consult legal counsel when seeking to avoid compliance with a subpoena at any stage.

Media coverage of unfit teachers, nurses, police officers, and other licensed government employees moving from one job to another after being accused of misconduct has recently increased. Therefore, licensing agencies are becoming more diligent about investigating reported misconduct, and have been utilizing the TPIA and subpoena power to obtain records. When your organization receives such a subpoena, it is best to promptly contact legal counsel, and expect the response to proceed as explained above.

Prepared by the offices of Richard Abernathy, this article should not be construed as legal advice related to any specific facts or circumstances. Although this article covers legal subjects, it is intended to educate readers and not to provide advice that will be the basis for action or inaction in any specific circumstance. Viewing these materials does not create an attorney-client relationship between Abernathy, Roeder, Boyd & Hullett, P.C. and the reader or the reader’s institution. For circumstance-specific legal advice, please directly contact a licensed attorney.