TheHonorable Donnan H.Winfrey Opinion No. H-917

Director and Librarian Texas State Library Re: Confidentiality of Eiox12927, Capitol Station non-current personnel Austin, Texas 78711 files transferred to the State Archives.
DearMr. 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 StateArchives forpermanent preservation. Specifically, you inquire as to the status of personnel records from theAustin State Hopsital for theyears 1942-1957, from the Texas Confederate Home forMen for theyears 1950-1957, and from the Texas Confederate Woman's Rome relative to the years 1945-1959. You also askwhether any such records excluded from disclosure under theOpen Records Act remain permanently confidential.
The transfer of personnel files or other records to the StateArchives does not affect the status of the transferred documents~under theOpen Records Act. Information which is excepted from disclosure under theAct canbe 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 hadwhen in the files of theoriginating agency.

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

Information inpersonnel files ispublic except insofar as itsdisclosure "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 theAct to the personnel files of former aswell 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 inTexas has been defined as:

[Tlheright tobe free from the unwarranted appropriation or exploitation of one's personality, thepublicizing of one's private affairs with which thepublic has no legitimate concern, or the .wrongfulintrusion into one's private activities in suchmanner as to outrage or causemental suffering, shame or humiliation to aperson of ordinary sensibilities. Billings v.Atkinson, 489 S.W.2d 858, 859 (Tex.Sup. m731. Although Billings recognizes the right of privacy forpurposes of tort law,both the Supreme Court of Texas and this office have nonetheless applied its standards in considering the scope of the right toprivacy 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 lossof the right toprivacy under the Open Records Act may be analogized to the lapse of that right under tort law.
We believe that those portions of apersonnel 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 thedeath of the individual, and release of one's files after death violates no protected right of that individual's privacy.

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

The authorities appear tobe 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 (ofprivacy) lapseswith the death of theperson who enjoyed it

. . . .' ThatWas theWeek thatWas, 423 F.2d 265, 266 Young v.

(6thCir.m70)CCorderv. Detective Publications, Inc., 419 F.2d 989, 990 (6thCir.m69). This is sobecause:

It is anomalous to speak of theprivacy of a deceased person . . . . As Shakespeare said, 'Theevil thatmen do lives after them

. . . .' What aman does while alive becomes apart of history which survives his death. Maritote v. Desilu Productions, Inc., 345F.2d n8, 420 (7thCir. 1965).
SeeAnnot., 18A.L.R.3d 873 (1968). - Dean Prosser has described the right of privacy as

a personal one, which does not extend to themembers of

. . . [one's] family, unless, as isobviously possible, their own privacy is invaded along with his.

. . . [Tlhere isno common law right of action for apublication concerning one who is already dead. Prosser, Privacy, 48 Calif. L. Rev. 383, 408 (1960). The personal nature of one's right toprivacy was recognized by the courts soon after Samuel Warren and Louis Brandeis introduced and defined the legal concept of a "right to privacy" in theirwidely noted article on the subject. Warren and Brandeis, The Right to Privacy, 4Harv. L. Rev. 193 (1890). As early-% 1895 aNew York court stated what was tobecome thevirtually uniform rule inAmerican jurisdictions:

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

Whatever right of privacy

. . . [thedecedent] had died with her. ~~"sl~:.v~p","r:Q~;,"' N.E. 22, 25

Although Texas courts have had no occasion to consider thematter 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~whoseprivacy-was invaded is "frequently analogized todefamation." Gruschus v. Curtis Publishing z, 342F.2d 775, 776 (10thCir. 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 theOpen Records Act. A similar ,rulehasbeen 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. 383F. SUDS. 1065 (S.D.N.Y. lv4 possible that information in the-file of a deceased former employee might invade thepersonal privacy of other living persons, inwhich case thatportion of the filewould 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 thepersonal-privacy of living individuals, however, the file ispublic and subject to disclosure.
SUMMARY
Non-current personnel files transferred to the State~Archives forpermanent preservation retain the same status as they hadbefore transfer under the Texas Open Records Act, article 6252-17a, V.T.C.S.,

P- 3847The 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 ispersonal to the individual and lapses upon his death, rendering his personnel filepublic except insofar as its disclosure would constitute a clearly unwarranted invasion of thepersonal privacy of living individuals. Very truly yours,

APPROVED: 

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DAVID M. &ENDALL, First Assis ant 

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C. ROBERT HEATH, Chairman ~ Opinion Committee jwb

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