A Texas appeals court ruling recently reversed a trial court order that would have required the University of Texas System and the University of Texas at Dallas (the University) to respond to a public records request by disclosing the identities of human research subjects. The Texas attorney general supported the public records disclosure and advocated for enforcement of the trial court’s order, but the appeals court ruled that important and unresolved questions must be further analyzed to determine whether the information is protected by the subjects’ rights to privacy. The University of Texas System, et al. v. Ken Paxson, Attorney General, et al., No. 03-14-00801-CV (Tex. Ct. App., 3rd Div. 4/7/17).

The litigation arose from a public request seeking that the University produce several categories of information related to three separate social-science research studies being conducted by a tenured faculty member concerning national security issues. The University requested a letter ruling from the Texas attorney general as to the confidentiality of the names of the participants in one of the studies. The University contended that common law and constitutional privacy rights protect the information, and it explained that the individuals’ identities would not be released as part of any published articles relating to the research. Particularly, the individuals had received informed consent statements indicating that their participation would be kept confidential. The attorney general issued a letter ruling rejecting these contentions and concluding that the University failed to demonstrate that the requested information is protected from public records disclosure. The dispute went before a trial court that sided with the attorney general through a pre-trial summary judgment ruling.

The appeals court agreed with the University’s argument that the trial court’s disposition was premature and based upon an incomplete factual record. The matters at issue implicated fact-specific questions about the privacy rights and expectations of the subjects who participated in the research.

The appeals court ruled that the attorney general “failed to conclusively negate the ‘highly intimate or embarrassing’ element of common-law right to privacy on the record before us…” The court remanded the matter back to the trial court for further proceedings to adjudicate whether the identities of the subjects should remain confidential and beyond the scope of the public records request.