Can the public get student evaluations of Texas university faculty used for tenure and pay decisions?

Texas AG Opinion JM-36: Student Faculty Evaluations

Plain-English summary

Senator Carl Parker asked whether student evaluations of faculty are open to the public under the Open Records Act when a university uses them for tenure, promotion, and salary decisions. He suggested the personnel-privacy exception, section 3(a)(2), might apply.

JM-36 found that exception a poor fit because it is very narrow, reaching only intimate details of a highly personal nature. Instead, the opinion pointed to the student-records exception.

"In our opinion, however, individualized student evaluations are excepted from disclosure by sections 3(a)(14) and 14(e) of the Open Records Act."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0036.pdf

That protection turned on whether a student could be identified, and identity could leak even from unsigned comments through handwriting or content, or where only a few students could have written them.

The opinion added a second possible basis: section 3(a)(11), the intra-agency memoranda exception, which could apply if a student evaluator acted as a "consultant" to the university.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why didn't the personnel-privacy exception cover the evaluations?

Because section 3(a)(2) is narrow and protects only intimate, highly personal information, which faculty evaluations ordinarily are not.

"The scope of employee privacy under section 3(a)(2) is very narrow. It may be invoked only when information reveals 'intimate details of a highly personal nature.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0036.pdf

How could unsigned student comments still be protected?

If a student's identity was easily traceable from the writing itself or the incidents described, or if so few students could have written them that identity was effectively revealed.

"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.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0036.pdf

When would a student count as a "consultant" under section 3(a)(11)?

At a minimum, when the student made the evaluation in response to a duty arising from a properly authorized request by the university administration.

"In our opinion, the student, in order to be regarded as a 'consultant' under section 3(a)(11) must, at a minimum, make his evaluation in response to a duty arising from a properly authorized request from the university administration."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0036.pdf

Background and statutory framework

The question fell under the Open Records Act, article 6252-17a, V.T.C.S. The opinion weighed three exceptions: the personnel-privacy exception in section 3(a)(2), the student-records exception in section 3(a)(14) (with section 14(e)), and the intra-agency memoranda exception in section 3(a)(11).

"You suggest that such information might be excepted from disclosure by section 3(a)(2) of the Open Records Act..."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0036.pdf

Holding

"Student evaluations of faculty members may be withheld from the public 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)(11) under certain circumstances."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0036.pdf

Citations and references

Statutes discussed by JM-36:

• "article 6252-17a, V.T.C.S." Official PDF
• "section 3(a)(2) of the Open Records Act" Official PDF
• "section 3(a)(14) [of the Open Records Act]" Official PDF
• "section 3(a)(11) of the Open Records Act" Official PDF

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0036
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0036.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

June 1, 1983

Honorable Carl A. Parker
Chairman
Senate Education Committee
Texas State Senate
P. O. 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 to whether student evaluations of faculty members are open to the public under the Open 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 the Open Records Act, as:

information in personnel files, the disclosure of which would constitute a clearly unwarranted invasion of personal 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). In Open Records Decision No. 316 (1982), the attorney general ruled that disclosure of even highly subjective comments from character references ordinarily does not, without more, constitute a "clearly unwarranted" invasion of personal 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 if the information does not identify individual students and is not in their handwriting, it may be withheld if there is a relatively small number of students to which it could be applicable. Open Records Decision No. 294 (1981). Thus, at the present time, it appears that, although section 3(a)(2) might occasionally except particular student evaluations of faculty members, it ordinarily 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)(11) of the Open Records Act, which excepts from disclosure:

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 this provision. Open Records Decision Nos. 345 (1982); 168 (1977). This office has recognized that section 3(a)(11) applies to advice, opinion, and recommendations prepared by consultants to a public body. See Open Records Decision Nos. 344, 335 (1982); 298, 293, 273 (1981). The scope of the term "consultants" has not been definitively established, but it certainly includes persons who are authorized to act, and do in fact act, in an official capacity on behalf of a governmental 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 to be regarded as a "consultant" under section 3(a)(11) must, at a minimum, make his evaluation in response to a duty arising from a properly authorized request from the university administration.

SUMMARY

Student evaluations of faculty members may be withheld from the public 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)(11) under certain circumstances.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
Nancy Sutton