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 of October 24, 1974. That decirion concerned acceoo by a faculty 

member to information in his personnel file, spectfically, letters of recommendation 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 exoectation 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 performance 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 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 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