JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin. TX. 76711. 2546 

5121475-2501 

Telex 9101674-1367 

Telecopier 5121475-0266 

714 Jackson, Suite 700 

Dallas. TX. 75202-4506 

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4624 Alberta Ave., Suite 160 

El Paso. TX. 79905-2793 

915/533-3464 

PlOOl Texas. Suite 700 

.,ous,on, TX. 77002-3111 

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606 Broadway. Suite 312 

Lubbock, TX. 79401.3479 

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McAllen, 1-X. 76501.1665 

5121662-4547 

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San Antonio. TX. 76205.2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

October 24, 1983 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002 

Opinion No. JM-81 

Re: Are names and addresses of 

parents of victims of sudden 

infant death syndrome available 

to the public under the Open 

Records Act 

Dear Mr. Driscoll: 

You have asked the following question: 

Can a sudden infant death syndrome (SIDS) 

project formerly federally funded, but now funded 

by Harris County and operated by the Harris County 

Health Officer, release the names and addresses of 

SIDS parents? 

As set forth in your brief, the relevant facts are as follows: 

Prior to the effective date of the Federal 

Omnibus Budget Reconciliation Act of 1981, the 

HalTAS County Health Officer WBS the local 

administrator for a federally funded Sudden Infant 

Death Syndrome (SIDS) Project. The purpose of the 

project was to collect information about SIDS and 

to provide counseling services to the parents of a 

SIDS victim. The names and addresses of suspected 

SIDS victims and their parents were provided to 

the project by the County Medical Examiner. A 

project nurse would contact the victim’s parents 

and offer the counseling services of the Project. 

The parents were also referred to voluntary 

community organizations, including the 

Houston-Harris County Chapter of the National SIDS 

Foundation. 

To the disappointment of the Houston Chapter, a 

number of the parents did not contact the Chapter 

after the initial referral by the Project. This 

lack of participation prompted the Houston Chapter 

to request the names and addresses of all parents. 

p. 343 
-’ . 

Honorable Mike Driscoll - Page 2 (JM-81) 

Upon receipt of this information the Chapter could 

initiate direct contact with the parents. On the 

advice of the Texas Department of Health Legal 

Division, the names were released without the 

consent of the parents. 

Federal funding for this project ended 

September, 1982. Through its Health Officer, 

Harris County continues to operate the Project 

using County funds. The operation of this Project 

is for a proper County purpose and a proper use of 

County funds. V.T.C.S. art. 4447e-2 (Vernon's 

S"PP. 1982-83). The Houston SIDS Chapter has 

requested that they be furnished the parents' 

names and addresses. The County Health Officer 

now asks that you determine whether the names and 

addresses are excepted from public disclosure. 

Common law privacy exists in any information which contains 

highly intimate or embarrassing facts about a person such that its 

disclosure would be highly objectionable to a person of ordinary 

sensibilities. The information must also not be of legitimate concern 

to the public. Industrial Foundation of the South V. Industrial 

Accident Board, 540 S.W.2d 668, 679 (Tex. 1976), [hereinafter =I; 

see, e.g., Open Records Decision Nos. 351, 343, 339, 328, 316 (1982); 

294, 268 (1981); 262, 258, 241 (1980). 

You state that a SIDS death indicates nothing about a parent's 

fitness, moral or otherwise. From a purely scientific standpoint, 

this may be entirely accurate; as a practical matter, however, we 

believe that a sizable percentage of the general public is 

unenlightened and still believes that SIDS deaths are, at least to 

some extent, the product of some fault or shortcoming on the parents' 

part. As a result, we believe that the publication of the names of 

non-consenting parents whose children died from SIDS would invite some 

measure of public obloquy. The fact that such obloquy is entirely 

undeserved will afford little comfort to parents who are forced to 

endure it. We conclude, therefore, that the publication of this 

information could be "highly embarrassing" to these parents, and would 

be objectionable to a person of ordinary sensibilities. 

Even if this information could not be deemed "highly 

embarrassing," it is, in our opinion, "highly intimate" within the 

meaning of the IAB test. The word "intimate" denotes, inter alia, 

"innermost" or "closely personal." Webster's NC?" International 

Dictionary, 2nd Ed. The nexus between parents and their infant is so 

close that it is difficult to imagine many kinds of information more 

"highly intimate" to a parent than the death of a small child by a 

sudden, unexplained cause. 

p. 344 
Honorable Mike Driscoll - Page 3 (JM-81) 

In IAB, supra, the Texas Supreme Court stated that information 

within oneof the following “zones of privacy” delineated by the 

United States Supreme Court may be withheld from public disclosure: 

marriage, procreation, contraception, family relationships, and child 

rearing and education. The court observed that although past 

decisions have focused upon privacy in the context of an individual’s 

“autonomy,” i.e., his right to decide for himself whether “to undergo 

certain experiences or to perform certain acts,” “disclosural privacy” 

is also deserving of protection. Id. It stated: 

We believe, nevertheless, that effective 

protection of the fundamental ‘zones of privacy’ 

thus far outlined by the Supreme Court necessarily 

implies a concomitant right to prevent unlimited 

disclosure of information held by the government 

which, although collected pursuant to a valid 

governmental objective, pertains to activities and 

experiences within those zones of privacy. The 

individual does not forfeit all right to control 

access to intimate facts concerning his personal 

life merely because the State has a legitimate 

interest in obtaining that information. 

In our opinion, the fact that a parent’s child died of SIDS 

constitutes “information held by the government which, although 

collected pursuant to a valid governmental objective, pertains to 

activities and experiences within” the “family relationship,” and 

perhaps the “child rearing,” zone of privacy. Although the zones of 

privacy delineated by the Supreme Court were derived from the United 

states Co”stit”tio”, we believe that they bear directly upon the 

common law right of privacy. In our opinion, the fact that 

information falls within one of these “zones” provides substantial 

evidence that the information is “highly intimate.” We conclude 

therefore that disclosure of the names of parents of SIDS victims 

would reveal “highly intimate or embarrassing facts about a person, 

such that its disclosure would be highly objectionable to a person of 

ordinary sensibilities.” 

To be excepted from required disclosure under common law privacy, 

information must, in addition to fitting in either of the above 

categories, be of no legitimate concern to the general public. There 

is no evidence that the general public would be placed in any danger 

or deprived of any benefit of consequence by a failure to make public 

the names of parents of SIDS victims. Nothing indicates, for example, 

that SIDS is a contagious disease. 

A child’s death from SIDS might also be contrasted from a child’s 

death from physical abuse by a parent. While a parent’s physical 

p. 345 
Honorable Mike Driscoll - Page 4 (JM-81) 

abuse of a child would certainly produce a far greater measure of 

public obloquy, and thus reveal "highly intimate or embarrassing 

facts" about that individual, the public interest in the two cases is 

entirely different. In such an instance of physical abuse, the public 

interest is sufficient to overcome the parental right of privacy. In 

the case of a SIDS death. on the other hand, the parent, like the 

child, is a helpless victim. As a result, we do not believe the 

public interest is sufficient to overcome the revelation of "highly 

intimate or embarrassing facts." 

It is thus our decision that the names and addresses of parents 

of victims of sudden infant death syndrome are excepted from 

disclosure by section 3(a)(l) of the Open Records Act, as information 

deemed confidential by law, specifically, the common law right of 

privacy. 

SUMMARY 

The names of parents whose children have died 

from SIDS are protected from required disclosure 

by the common law right of privacy, and may not be 

released without the parents consent. 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Jon Bible 

Nancy Sutton 

p. 346