JIM MATTOX Attorney General

Supreme Court Building P.0. BOX 12548 Austin. TX. 78711- 2548 5121475-2501 Telex 91018741367 Te,eco,Wzr 5121475-0266

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# TheAttorney General ofTexas

June 1, 1983

Honorable CarlA.Parker Chairman Senate Education Committee Texas State Senate P. 0.Box 12068,Capitol Station Austin, Texas 78711 opinion No. JM-36
Re: Whether student evaluations of faculty members are open to the public if they are used to make promotion and salary decisions
Dear Senator Parker:
You have requested our opinion as towhether student evaluations of facultymembers are open to thepublic under theOpen Records Act, article 6252-17a. V.T.C.S., if such evaluations are a factor in determining faculty tenure, promotions and/or salary. You suggest that such information might be excepted from disclosure by section 3(a)(2) of theOpenRecords Act, as:

information inpersonnel files, the disclosure of which would constitute a clearly unwarranted invasion ofpersonal privacy. The scope of employee privacy under section 3(a)(2) is very narrow. Open Records Decision Nos. 336, 315 (1982). It may be invoked only when information reveals "intimate details of a highly personal nature." Open Records Decision Nos. 315 (1982); 298, 284 (1981). InOpen Records Decision No. 316 (1982), theattorney general ruled that disclosure of even highly subjective comments from character references ordinarily does not, without more, constitute a "clearly unwarranted" invasion ofpersonal privacy.
In our opinion, however, individualized student evaluations are excepted from disclosure by sections 3(a)(14) and 14(e) of the Open Records Act. Open Records Decision No. 332 (1982). Even unsigned student comments might make the student's identity "easily traceable through the handwriting, style of expression, or the particular incidents related in the comments." Open Records Decision No. 224 (1979). Even ifthe information doesnot identify individual students and is not in their handwriting, it may be withheld if there is a relatively small number of students towhich it could be applicable. Open Records Decision No. 294 (1981). Thus, at thepresent time, it appears that, although section 3(a)(2) might occasionally except P

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particular student evaluations of faculty members, itordinarily does not do so. Such evaluations are excepted by section 3(a)(14), however, if they identify individual students or their identities are easily detectable therefrom.
In certain circumstances, student evaluations might also be withheld under section 3(a)(ll) of theOpen Records Act,which excepts fromdisclosure:

inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than one in litigation with the agency. Evaluations may be excepted by thisprovision. Open Records Decision Nos. 345 (1982); 168 (1977). This office has recognized that section 3(a)(ll) applies to advice, opinion, and recommendations prepared by consultants toapublic body. SeeOpen Record Decision Nos. 344, 335 (1982); 298, 293, 273 (1981). Thescope of the term "consultants" has not been definitively established, but it certainly includes persons who are authorized toact, anddo in factact, inanofficial capacity onbehalf ofagovernmental body. Open Records Decision Nos. 283, 273 (1981). Whether a student evaluator may properly be deemed a "consultant" will depend upon the facts of each particular case. In our opinion, the student, in order tobe regarded as a "consultant" under section 3(a)(ll) must, at a minimum, make his evaluation in response toaduty arising fromaproperly authorized request from the university administration.
SUMMARY

Student evaluations of faculty members may be withheld from thepublic under section 3(a)(14) of the Open Records Act if they identify individual students. Such evaluations may also be withheld as intra-agency memoranda pursuant to section 3(a)(ll) under certain circumstances.

Ver trulyyour 

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- JIM MATTOX Attorney General ofTexas TOMGREEN FirstAssistant Attorney General

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DAVID R.RICHARDS Executive Assistant Attorney General Prepared byRick Gilpin Assistant Attorney General APPROVED: OPINION COMMITTEE SusanL.Garrison, Chairman Rick Gilpin JimMoellinger Nancy Sutton

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