Open Records Decision No. 239
April 9, 1980

	Re:  Whether a college president's recommendation regarding tenure for 
individual professors is public.

Honorable W. O. Shultz, II
Associate General Counsel
The University of Texas System
Austin, Texas  78701

Dear Mr. Shultz:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to whether a college president's recommendations to the Board of Regents 
regarding faculty tenure are available to the public.  The President of the University of 
Texas at Austin requested the deans of the various colleges to evaluate the status of 
certain faculty members for the 1980-81 school year, including recommendations with 
respect to tenure, promotion and termination.  After reviewing these evaluations, the 
President informed the various deans of the recommendations which he will make to the 
Board of Regents regarding these matters.  The final decision will be made by the 
Regents.  You suggest that such information is excepted from disclosure under section 
3(a)(11) of the Open Records Act, which excepts “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.”

	In Attorney General Opinion H-436 (1974), this office promulgated the basic 
standard for determining whether information is excepted by section 3(a)(11).  The 
opinion held that the section is

designed to protect from disclosure advice and opinion on policy 
matters and to encourage open and frank discussion between 
subordinate and chief concerning administrative action.

Disclosure was held not to be required “to the extent that portions of [a] document 
consist of advice and recommendations.”  Subsequent decisions of this office have 
followed this view.  See, e.g., Open Records Decision Nos. 174 (1977); 128 (1976); 86 
(1975).

	Unlike some intra-agency reports, the recommendations at issue here consist of 
nothing more than the name of the individual, his department, his present status, and the 
recommended action.  As in Open Records Decision No. 174 (1977), we believe that the 
“factual information contained in [the reports] is incidental to and so intertwined with the 
evaluations and recommendations that we do not believe it is reasonably severable.”  It is 
thus our decision that a college president's recommendations to the Board of Regents 
regarding faculty tenure are excepted from disclosure by section 3(a)(11) of the Open 
Records Act.  Of course, if the University determines that release of these records would 
not inhibit the free exchange of information between the President and Regents, it may 
and should release the information.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Ted L. Hartley
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Susan Garrison
Rick Gilpin
Bruce Youngblood
Lonny Zwiener