The Honorable Donnan H. Winfrey Opinion No. H-917 

Director and Librarian 

Texas State Library Re: Confidentiality of 

Eiox 12927, Capitol Station non-current personnel 

Austin, Texas 78711 files transferred to the 

State Archives. 

Dear Mr. Winfrey: 

You have requested our opinion whether the Texas Open 

Records Act, article 6252-17a, V.T.C.S., applies to records 

that have been declared non-current by the originating 

agency and subsequently transferred to the State Archives 

for permanent preservation. Specifically, you inquire as 

to the status of personnel records from the Austin State 

Hopsital for the years 1942-1957, from the Texas Confederate 

Home for Men for the years 1950-1957, and from the Texas 

Confederate Woman's Rome relative to the years 1945-1959. 

You also ask whether any such records excluded from disclosure 

under the Open Records Act remain permanently confidential. 

The transfer of personnel files or other records to 

the State Archives does not affect the status of the 

transferred documents~ under the Open Records Act. Information 

which is excepted from disclosure under the Act can be 

transferred between State agencies without violating its 

confidentiality or destroying its confidential character. 

Attorney General Opinion H-242 (1974). Likewise, public 

information remains public when it is transferred from the 

files of the originating State agency to the State Archives. 

Thus, we believe the non-current personnel records about 

which you inquire retain the same status under the Open 

Records Act after they have been transferred to the State 

Archives as they had when in the files of the originating 

agency. 

P. 3844 
The Honorable Dorman H. Winfrey - page 2 (H-917) 

Information in personnel files is public except insofar 

as its disclosure "would constitute a clearly unwarranted 

invasion of personal privacy." V.T.C.S. art. 6252-17a, § 

3(a) (21. We have considered the scope of this exception on 

numerous occasions. See Open Records Decision Nos. 133, 132, 

123, 119 (19761, 117,111, 110, 106, 103, 102, 93, 91, 71, 

68, 67, 55A (19751, 60, 55, 54, 41, 37, 34, 15, 14 (1974). 

We have also applied the "personal privacy" exception of 

section 3(a) (2) of the Act to the personnel files of former 

as well as current employees. Open Records Decision Nos. 

133, 119 (19761, 93, 71, 68 (1975). 

We have not, however, previously considered the question 

of when personnel records excepted from disclosure under 

section 3(a)(2) lose their confidential nature and become 

public. The right of privacy in Texas has been defined as: 

[Tlhe right to be free from the unwarranted 

appropriation or exploitation of one's 

personality, the publicizing of one's private 

affairs with which the public has no legitimate 

concern, or the .wrongful intrusion into one's 

private activities in such manner as to outrage 

or cause mental suffering, shame or humiliation 

to a person of ordinary sensibilities. Billings 

v. Atkinson, 489 S.W.2d 858, 859 (Tex. Sup. 

m731. 

Although Billings recognizes the right of privacy for purposes 

of tort law, both the Supreme Court of Texas and this office 

have nonetheless applied its standards in considering the 

scope of the right to privacy under the Open Records Act. 

Industrial Foundation of the South v. Texas Industrial -- 

Accident Board, 540 S.W.Zd 668 (TexTSup. 1976); Attorney 

General Opinions H-483 (1974), H-258 (19741, H-90 (1973); 

Open Records Decision Nos. 123 (1976), 68, 67 (1975), 19, 

18A (19741, 2 (1973). We likewise believe that the loss of 

the right to privacy under the Open Records Act may be 

analogized to the lapse of that right under tort law. 

We believe that those portions of a personnel file 

excepted from disclosure because release would constitute a 

"clearly unwarranted invasion of personal privacy" retain 

their confidentiality, unless waived, so long as the subject 

of the file remains alive. The right of privacy terminates, 

however, upon the death of the individual, and release of 

one's files after death violates no protected right of 

that individual's privacy. 

P. 3845 
The Honorable Dorman H. Winfrey - page 3 (H-917) 

The authorities appear to be uniform 

that the right of privacy cannot be 

asserted by anyone other than him 

whose privacy is invaded. 

Johnson Publishing Co., 325%% %9, 

-1. Dist. Ct. App. 19581. 

Accord, James v. Screen Gems, Inc. 344 P.2d 799, 801 (Cal. 

Dist. Ct. App.79rT.general rule" is that "the right 

(of privacy) lapses with the death of the person who enjoyed 

it . . . .' That Was the Week that Was, 423 F.2d 

265, 266 

Young v. 

(6th Cir. m70)CCorderv. Detective Publications, 

Inc., 419 F.2d 989, 990 (6th Cir. m69). This is so because: 

It is anomalous to speak of the privacy 

of a deceased person . . . . As 

Shakespeare said, 'The evil that men do 

lives after them . . . .' What a man 

does while alive becomes a part of 

history which survives his death. 

Maritote v. Desilu Productions, Inc., 

345 F.2d n8, 420 (7th Cir. 1965). 

See Annot., 18 A.L.R.3d 873 (1968). - 

Dean Prosser has described the right of privacy as 

a personal one, which does not extend to 

the members of . . . [one's] family, 

unless, as is obviously possible, their 

own privacy is invaded along with his. . . . 

[Tlhere is no common law right of action for 

a publication concerning one who is already 

dead. Prosser, Privacy, 48 Calif. L. Rev. 

383, 408 (1960). 

The personal nature of one's right to privacy was recognized 

by the courts soon after Samuel Warren and Louis Brandeis 

introduced and defined the legal concept of a "right to 

privacy" in their widely noted article on the subject. 

Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 

193 (1890). As early-% 1895 a New York court stated what 

was to become the virtually uniform rule in American jurisdictions: 

P. 3846 
The Honorable Dorman H. Winfrey - page 4 (H-917) 

Whatever right of privacy . . . 

[the decedent] had died with her. 

~~"sl~:.v~p","r:Q~;,"' N.E. 22, 25 

Although Texas courts have had no occasion to consider 

the matter in connection with the right of privacy, a cause 

of action for libel has been "restricted to the person who 

has directly sustained the injury," and cannot be brought 

by another on behalf of the dead, Renfro Dru 

Ti? 

co. v. 

Lawson, 160 S.W.2d 246, 250 (Tex. S-4 %Z ZjZneral 

rule that an action for invasion of orivacv does not survive 

the death of the party ~whose privacy-was invaded is 

"frequently analogized to defamation." Gruschus v. Curtis 

Publishing z, 342 F.2d 775, 776 (10th Cir. 1965r We are, 

therefore, of the opinion that Texas courts would follow the 

almost uniform rule of other jurisdictions that the right of 

privacy lapses upon death. 

With the death of a former State employee, therefore, 

no invasion of his privacy can occur, and his personnel file 

is no longer excepted from public disclosure under section 

3(a)(2) of the Open Records Act. A similar ,rule has been 

applied to the exemption from disclosure of files "which 

would constitute a clearly unwarranted invasion of personal 

privacy" under the Federal Freedom of Information Act, 5 

iJ.S.C.-§ 552(b) (6). Rabbitt v. 

383 F. SUDS. 1065 (S.D.N.Y. lv4 

possible that information in the-file of a deceased former 

employee might invade the personal privacy of other living 

persons, in which case that portion of the file would remain 

confidential and excepted from disclosure under either 

section 3(a) (1) or 3(a) (2). _ See Industrial Foundation of 

the South v. Texas Industrial Accident Board, supra. IFa 

review ae oersonnel file of a deceasedormer emolovee 

reveals no such unwarranted invasion of the personal-privacy 

of living individuals, however, the file is public and 

subject to disclosure. 

SUMMARY 

Non-current personnel files transferred 

to the State~Archives for permanent 

preservation retain the same status as 

they had before transfer under the Texas 

Open Records Act, article 6252-17a, V.T.C.S., 

P- 3847 
The Honorable Dorman H. Winfrey - page 5 (H-917) 

and are public except insofar as disclosure 

would constitute a clearly unwarranted 

invasion of personal privacy. The right 

of privacy is personal to the individual 

and lapses upon his death, rendering his 

personnel file public except insofar as 

its disclosure would constitute a clearly 

unwarranted invasion of the personal 

privacy of living individuals. 

Very truly yours, 

APPROVED: 

?leP.-+ht 

DAVID M. &ENDALL, First Assis ant 

(/&&$J 

C. ROBERT HEATH, Chairman ~ 

Opinion Committee 

jwb 

P. 3848