January 9, 1975

Mr. Richard C. Gibson Director, University of Texas System Law Office 601 Colorado Street Austin, Texas 78701 Open Records Decision No. 55A Re: Faculty Records

Dear Mr. Gibson: You have asked additional questions concerning our Open Records Decision No. 55 ofOctober 24, 1974. That decirion concerned acceoo bya faculty member to information in his personnel file, spectfically, letters of recommendation and evaluations ofhis performance. In that Decision we said:

You have aloo expressed concern that some ofthe material inthe personnel file is given with an exoectation of confidentiality. Yet, we have neither been zted to nor have we foundany lawwhich would make these records confidential.

. . . . Itis our decision therefore, thatinformation located in the files ofthe University andhaving to dowiththe performance of a faculty member and evaluation of performance vir-a-vir his retention ao a faculty member, is information which is made available to themember by Section 3(a)(2) of the Open Records Act. In your additional questions, you cite examples ofwritten promises of confidentiality made bythe University andwritten agreements tohold evaluative material confidential in order to obtain candid responses. We have reviewed our decision in Open Records Decision No. 55 (1974), in light ofthe newfacts you have presented andwhile we believe that ourMr. Richard C. Gibson, page 2

conclusion there was basically correct, we also believe thatit should be amplified as to cases where anactual agreement of confidentiality can be shownto have been made. Prior to the enactment of the Open Records Act, article 6252-17a. V.T.C.S., there was nolaw which restricted the University from entering into valid agreements to hold certain information confidential. We believe thatin cases where reliable proof indicates an evaluation or recommendation was obtained in exchange for a promise of confidentiality, andwhere reliable proof demonstrates thatthe evaluation was provided in reliance on such an agreement, the University may honor such a demonstrated obligation to hold theinformation as confidential andmay refuse todisclose it to the faculty member whom it concerns. A contemporaneous written agreement would of course be thebest ‘evidence of such anagreement. 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 thatit would constitute animpairment ofthe University’s obligation under a contract of confidentiality to apply section 3(a)(2) ofthe 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 60by law, governmental bodies are nowprevented bythe 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 inmost instancea, such agreements cannot prevail against anindividual’s right to access toinformation which is the basis for adverse action by the governmental 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).- -

Mr. Richard C. Gibson, page 3

In your request you asked several questions concerning the potential liability ofa person whowrote anadverse evaluation under anexpectation of confidentiality which cannot be honored. We must decline to speculate onthese 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