JIMMATTOX Attorney

General

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# The Attorney General of Texas
October 24, 1983

HonorableMike Driscoll Harris CountyAttorney 1001Preston, Suite 634 Houston,Texas 77002 OpinionNo.JM-81

Re: Are names and addressesof parents of victims of sudden infantdeath syndromeavailable to the public under the Open RecordsAct
DearMr. Driscoll:

You have asked the followingquestion:

Can a sudden infant death syndrome (SIDS) project formerly federally funded,but now funded by Harris Countyand operatedby the Harris County HealthOfficer, release thenames and addressesof SIDSparents?
As set forth inyour brief, the relevant factsare as follows:

Prior to the effective date of the Federal Omnibus Budget Reconciliation Act of 1981, the HalTAS County Health Officer WBS the local administratorfor a federally funded Sudden Infant Death Syndrome (SIDS)Project. The purpose of the project was to collect informationabout SIDS and toprovide counselingservices to theparents of a SIDSvictim. The names and addressesof 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-HarrisCounty Chapter of the National SIDS Foundation.

To the disappointmentof the Houston Chapter, a number of the parents did not contact the Chapter after the initial referral by the Project. This lack of participationprompted theHouston Chapter to request thenames and addressesof all parents.

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Upon receiptof this informationthe Chapter could initiatedirect contactwith the parents. On the advice of the Texas Department of Health Legal Division, the names were released without the consent of theparents.
Federal funding for this project ended September, 1982. Through its Health Officer, Harris County continues to operate the Project using County funds. The operationof this Project is for a proper Countypurpose and a properuse 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 determinewhether the names and addressesare excepted frompublic 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 informationmust also not be of legitimateconcern 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 DecisionNos. 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 shortcomingon the parents' part. As a result, we believe that the publication of the names of non-consentingparentswhose childrendied from SIDSwould 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 informationcouldbe "highly embarrassing"to theseparents, andwould be objectionableto 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 imaginemany kinds of informationmore "highly intimate" to a parent than the death of a small child by a sudden,unexplained cause.

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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 decisionshave focusedupon privacy in the context of an individual’s “autonomy,” i.e.,his right to decide for himselfwhether “to undergo certain experiencesor to perform certainacts,” “disclosuralprivacy” is also deservingof protection. Id. It stated:

We believe, nevertheless, that effective protection of the fundamental ‘zones of privacy’ thus far outlinedby the SupremeCourt necessarily implies a concomitant right to prevent unlimited disclosure of informationheld by the government which, although collected pursuant to a valid governmentalobjective,pertains to activitiesand 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 disclosurewould be highly objectionableto a person of ordinary sensibilities.”

To be excepted from requireddisclosureunder common lawprivacy, 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 consequenceby a failure tomake public thenames of parents of SIDSvictims. Nothing indicates,for example, that SIDS is a contagiousdisease.

A child’sdeath from SIDSmight alsobe contrasted from a child’s death from physical abuse by a parent. While a parent’s physical

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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 entirelydifferent. In such an instanceof physical abuse, thepublic interest is sufficientto 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 intimateor embarrassingfacts."

It is thus our decision that the names and addresses of parents of victims of sudden infant death syndrome are excepted from disclosureby section 3(a)(l) of the Open RecordsAct, as information deemed confidential by law, specifically, the common law right of privacy.
SUMMARY

The names of parents whose childrenhave died from SIDS are protected from required disclosure by the common law rightof privacy, andmay not be releasedwithout the parents consent.

JIM MATTOX Attorney General of Texas
TOM GREEN First AssistantAttorney General

DAVID R. RICHARDS ExecutiveAssistantAttorney General Preparedby Jon Bible AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Jon Bible Nancy Sutton

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