Untitled Texas Attorney General Opinion ( 1974 )

January 9, 1975
Mr. Richard C. Gibson Open Records Decision No. 55A
Director, University of Texas
System Law Office Re: Faculty Records
601 Colorado Street
Austin, Texas 78701
Dear Mr. Gibson:
You have asked additional questions concerning our Open Records Decision
No. 55 of October 24, 1974. That decirion concerned acceoo by a faculty
member to information in his personnel file, spectfically, letters of recom-
mendation and evaluations of his performance.
In that Decision we said:
You have aloo expressed concern that some of the
material in the personnel file is given with an exoecta-
tion of confidentiality. Yet, we have neither been
zted to nor have we found any law which would make
these records confidential.
. . . .
It is our decision therefore, that information located
in the files of the University and having to do with the
performance of a faculty member and evaluation of per-
formance vir-a-vir his retention ao a faculty member,
is information which is made available to the member
by Section 3(a)(2) of the Open Records Act.
In your additional questions, you cite examples of written promises of
confidentiality made by the University and written agreements to hold
evaluative material confidential in order to obtain candid responses.
We have reviewed our decision in Open Records Decision No. 55 (1974),
in light of the new facts you have presented and while we believe that our
Mr. Richard C. Gibson, page 2
conclusion there was basically correct, we also believe that it should be
amplified as to cases where an actual agreement of confidentiality can be
shown to have been made.
Prior to the enactment of the Open Records Act, article 6252-17a.
V.T.C.S., there was no law which restricted the University from entering
into valid agreements to hold certain information confidential. We believe
that in cases where reliable proof indicates an evaluation or recommendation
was obtained in exchange for a promise of confidentiality, and where reliable
proof demonstrates that the evaluation was provided in reliance on such an
agreement, the University may honor such a demonstrated obligation to
hold the information as confidential andmay refuse to disclose it to the
faculty member whom it concerns. A contemporaneous written agreement
would of course be the best ‘evidence of such an agreement.
Both the Texas and United States Constttirtions prohibit impairment of
the obligationa of cobtracts. Tex. Const. ‘art. 1, § 16; U.S. Const. art. 1,
§ 10. We believe that it would constitute an impairment of the University’s
obligation under a contract of confidentiality to apply section 3(a)(2) of the
Open Records Act to require the University to breach any such demonstrated
agreement by disclosing such information to the subject of the evaluation.
Open Records Decision No. 64 (1975).
However, unless authorized to do 60 by law, governmental bodies are
now prevented by the Open Records Act from making agreements to keep
information confidential. Attorney General Opinion H-258 (1974). Thus,
only such agreements made prior to June 14, 1973, the effective date of
the Open Records Act, may be honored.
While valid agreements’ as to confidentiality may be honored in most
instancea, such agreements cannot prevail against an individual’s right to
access to information which is the basis for adverse action by the govern-
mental body affecting the individual. Greene v. McElroy, 360 U.S. 474,
496 (1959); Open Records Decision No. 31 (1974); Attorney General Opinion
H-249 (1974).
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Mr. Richard C. Gibson, page 3
In your request you asked several questions concerning the potential
liability of a person who wrote an adverse evaluation under an expectation
of confidentiality which cannot be honored. We must decline to speculate
on these general hypothetical questions dealing with possible private
liabilities.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Aasistant
C. ROBERT HEATH, Chairman
Opinion Committee