### T133 AV~NBRNEY GENERAL
OFTEXAS

Honorable James Cole Opinion No. M- 1172 State Representative Chairman, Committee on Re: Conditions and circumHouse Administration stances under which the Capitol Station Committee on House AdAustin, Texas 78711 ministration must produce personnel records for examination by private individuals, and related Dear Mr. Cole: questions.

Your request for anopinion reads as follows: "Recently there have beenmany requests byprivate individuals forpermission to examine thepersonnel records of the House of Representatives. These records are in the custody of the Committee on House Administration.

"Someof the information in these records might be considered privileged or confidential, such as applications for employment.

"Youropinion is respectfully requested with regard to the following questions:

"1

. Under the applicable law and legislative resolutibns, towhat extent and under what conditions and circumstances must the Committee on House Administration or its chairman produce these personnel records for examination by private individuals?

"2

. Towhat extent would the chairman or a member or employee of the Committee on House Administration subject himself to liability,for invasion of the right ofprivacy or for libel or slander as a result ofvoluntarily producing such records for examination by private individuals?"
While a resolution may control the internal administration of the House of Representatives, you have not advised us of

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any resolution, rule or regulation of the House relating to the inspection of these records. The resolutions, rules, and regulations furnished to us contain no provisions relating to inspections of these records.

The right to inspect certain records in the custody of State officials isprovided for in certain instances by statutes and, inother instances, a citizen may have a common law right to inspect certain records if the citizen can show a justiciable interest in the context of the records. Attorney Generalrs Opinion V-681 (1948). Generally speaking, however, the right to inspect records isdependent upon thevarious statutes applicable toparticular records. Wewill quote from a fewAttorney General's Opinions in support of this conclusion.

Attorney General's Opinion M-157 (1967):

"The State Department of Public Welfare must furnish to the Texas Department of Public Safety, pursuant to the provisions of Section 16 of House Bill 354,Acts 60th Legislature, Regular Session, Chapter 328,page 778, codified as Section 30Aof Article 6687b,Vernon's Civil Statutes, a list of each person who applies foror receives public assistance as aneedy blind person, regardless of the existing provisions of Section 33ofArticle 695c,Vernon's Civil Statutes."
Attorney General's Opinion M-452 (1969):
"Accident reports submitted bypeace officers to theDepartment of Public Safety after January 1, 1970 are public records and a copy of such accident report en totomust be furnished to any person re-

-- questing same and paying a $2 fee. The Department may not detach aportion of such report for statistical purposes but the Department may prepare a separate statistical report."
Attorney General's Opinion M-516 (1969): "Hospital administrators may refuse to furnish to the deceased's widow themedical records of the deceased former patient who died shortly after his discharge."

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Attorney General's Opinion M-317 (1968):
"(1) The Texas Department of Mental Health andMental Retardation may furnish to local community centers themedical records ofpersons who have been treated in its institutions who are residents of the region served by the local community center.
"(2) Community centers may furnish to the Texas Department of Mental Health and Mental Retardation medical records onpersons treated by such local community centers."
Attorney General's Opinion M-213 (1968):
"Anyofficer of this state charged with the enforcement of its lawsmay be shown the notices, orders, records and publications in custody of the Texas Liquor Control Board, which aremade 'privileged' documents under Article 666-12a(5), Vernon's Penal Code. Such records, etc., may also be produced in the course of someproceeding inwhich the Board or the state is aparty (either judicial in nature or in an action instituted to suspend or cancel thepermit or to collect taxes due orpenalties forviolation of the laws of this state), andmay bepresented to the legislature for study in enacting informed legislation regulating the liquor industry. The business information furnished by licensees or obtained by the Board through inspection of licensed premises isnot to bepublicly disclosed except for such purposes and to such authorized officials except where such information has become amatter of public record as a result of legal proceedings of the nature specified, including hearings before theAdministrator on violations of Texas liquor laws."
Attorney General's Opinion M-295 (1968):
"The Securities Commissioner is an 'Officerof the State charged with the enforcement of its laws,' pursuant toArticle 581-28, Vernon's Civil Statutes, andwithin themeaning ofArticle 12.10, Title 122A, Taxation-General, Vernon's Civil Statutes, and is

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entitled to request of and receive from the State Comptroller of Public Accounts of the State of Texas copies of franchise tax reports made by corporations to the said Comptroller."
Attorney General's Opinion M-388 (1969):
"TheCommissioner of Insurance, being an 'Officer of the State charged with the enforcement of its laws,' pursuant toArticle 1.09(a), of the Texas Insurance Code, andwithin themeaning ofArticle 12.10, Title 122A, Taxation-General, V.C.S., is entitled to request of and to receive from the State Comptroller of Public Accounts,of the State of Texas copies of franchise tax reports made by corporations to the Comptroller."

It isour opinion thatwhether certain records are required tobemade available for a limited or unlimited inspection isdependent upon the nature of the records and the authority to inspect them provided byvarious statutes aswell as the justiciable interest of theperson seeking tomake the inspection. Morris v. Hoerster, 348 S.W.2d 642 (Tex.Civ.App. 1961, error ref. n.r.e.1; Morris v. Smiley, 378 S.W.Zd 149 (Tex.Civ.App. 1964, error ref. n.r.e.); Morris v. Hoerster, 377 S.W.Zd 841 (Tex.Civ.App. nowrit); Pruett v. Burr, 257 P.2d 600 (D.C.Calif. 1953); Mathews v. Pyle, 75Ariz. 76, 251 P.2d 893 (1952);Sorley v. Lister, 218N.Y.S.2d 215 (1961).

We have been unable to find any statutory provision makingpersonnel records described inyour request "public records". SeeMathews v. Pyle, 75Ariz. 76, 251P.2d 893 (1952). Neither have we been able to find any statutory provision requiring or authorizing inspections of personnel records described inyour request, and it isour opinion that aprivate individual does not have a common law right to inspect those records. You are therefore advised that neither the Committee on House Administration
nor its Chairman isrequired toproduce personnel records for examination by private individuals.

In this connection aswell as in answer toyour second question, we observe that the personnel records are not by statute made confidential orprivileged records and there isno law generallyofwhich we are aware which would prevent thevoluntary discretionary disclosure of various information thatmay be in these records by the Committee on House Administration, the custodian of the records. The particular information tobe sodivulged would

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no doubt be dependent upon the nature of theparticular record involved and thewrong, if any, resulting from the examination. For that reason, we are unable categorically to give anyprecise
answer toyour second question. It is our opinion that generally it iswithin the sound discretion of the custodian of the records as towhat information orportion of the record hemay see fit to~disclose to the public, subject, however, to the necessary qualification that he should notmake adisclosure thatwould violate the right ofprivacy of the individual concerned or thatmight subject the custodian to ameritorious defamation action.

A tort action arising out ofpublication, written or oral, for invasion of the right ofprivacy isnow recognized in
amajority of the states, but there being no such action recognized at common law, Texas has so far refused to recognize such
an action in the absence of statute. Milner v. Red River Valley Pub..Co., 249 S.W.Zd 227 (Tex.Civ.App. 1952, nowrit); McGullach
v. Houston Chronicle Pub. Co., 211F.2d 4 (5thCir. 1954); Billings
v.Atkinson, 471 S.W.2d 908, 912-913 (Tex.Civ.App. 1971, error granted)- 46Tex.Jur.2d 317, Privacy; 23Baylor Law Rev. 117, 120, 126; 133. However, Texas courts have afforded limited relief in cases ofphysical invasion of one's person orproperty, and Texas has deal% with wronaf statute and Texas has dealt with wrongful acts as iilegal searches both by statute and judicial decision. Shell Petroleum Corp. v. Liberty Gravel & Sar

nd Co., 128 S.W.2d 471 (Tex.Civ.App. 1939, nowrit): Lyle v. Wadd

le, 144 Tex. 90, 188 S.W.Zd 770 (1945);Hushes v. State, 67TE - ex.Crim. 333, 149 S.W. 173 (1912);U.S. Const., Amend. IV:Art. 1. Sec. 9, Tex. Const. Eavesdroobina is dealt with by federal statute. .47U.S.C.A. 605. Reco%ry-is allowed where the interference substantially and unreasonably interferes with one's comfort, use, and enjoyment of property. Brown Supply Co. v. Lester, 304 S.W.2d 192 (Tex.Civ.App. 1957,writ ref., n.r.e.1. InMaresca v.Marks, 362 S.W.2d 299, 301 (Tex.Sup. 19621, involving a litigant's right of discovery of relevant information disclosed by income tax returns, the court observed that "Theprotection of privacy isof fundamental -- indeed, of constitutional importance" and that such discovery "is sustainable only because thepursuit of justice outweights protection of their privacy."

A limitation upon the right of privacy has likewise been noted, and ithas been held that the right does not extend to those facts which are "newsworthy" and inwhich thepublic has a legitimate interest. Mahaffey v. Official Detective Stories, 210F.Supp. 251 (W.D.La. 1962).

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Hon. James Cole, page 6 (M-1172,)

Several federal decisions by theUnited States Supreme Court have recognized a limited right of privacy in domestic relations and in involvement of one's political past and association which are damaging in the extreme. See Griswold v. Connecticut, 381U.S. 479 (1965);Sweezy v. New Hampshire, 354 U.S. 234 (1957);DeGregory v.Attorney General ofNew Hampshire, 383U.S. 825 (1966);Antieau's Modern Constitutional Law,Vol. 1,PP. 200-203, Sects. 2:38 and ,2:39.

As discussed in 46 Texas Law Review 611, 621, the right toprivacy should not prohibit any disclosure ofmatter which is ofpublic or general interest. This is somewhat similar to the privilege of fair comment onmatters of public and general interest in the law of defamation.

,Thedisclosure problem with which we are concerned is discussed inan article, "Defamation, Privacy, and the Public's Right toKnow: A National Problem and a NewApproach," 46Tex. Law Rev. 630, 633,wherein itwas observed that it "encompasses three disparate and often conflicting interests. Defamation and privacy work to restrict publication, whereas the essence of the third interest -- thepublic's right toknow -- is free and unfettered communication. Where interests conflict, it isboth necessary and desirable to resort to abalancing test, assuming of course that each interest isgiven aweight vis-a-vis the others commensurate with its own importance."

With reference todefamation, the U.S. Supreme Court has held that adefamatory comment concerning public officials
or certain other public persons fellwithin theprotection of the first amendment to theUnited States Constitution and no recover" of damaaes mav be awarded without a showina of actual malice. New York Times Co. v, Sullivan, 376U.S.-254 (19649. This includes a tort action for the invasion ofprivacy bymass publicity. Time, Inc. v. Hill, 385U.S. 374 (1967). Actual malice must be shown under Texas decisions to circumvent the defense of fair comment. Broadstreet Co. v. Gill, 72Tex. 115, 9S.W. 753 (18889.

It isalso noted that the defense of "fair and accurate comment and criticism" exists in the field of libel. 23Baylor Law Rev. 127.

In the "personnel records" of the House of Representatives, many items proper aswell as improper for disclosure might be found. We know of no requirements as towhat matters may or

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may not be inserted therein. Many matters therein may possibly be found in certain public records required tobemaintained and surely thesematters might properly be disclosed ifnot otherwise objectionable aspreviously discussed.

In addition, certain other matters might be properly described which are ofpublic interest which are directly related to the governing process andwhich follow within the general guidelines set out above, such as the name of theperson hiring the employee,the employee's salary or other compensation, his classification and nature of duties and other relatives employed by the State.

SUMMARY

While thepersonnel records in the custody of the Committee on House Administration of the House of Representatives are not "public records" and there isno common law right to inspect them by themembers of the public, nevertheless they are not by statute privileged or confidential, and it iswithin the sound discretion of the custodian of the records to disclose certain proper information therefrom inwhich the public has a right toknow andwhich would not violate the right of privacy of the individual concerned or give rise toameritorious action for defamation.

Prepared by John Reeves Assistant Attorney General

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APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E.Allen, Co-Chairman Ben Harrison Linward Shivers Pat Bailey Jack Goodman

SAMUEL D.MCDANIEL Staff Legal Assistant

ALFRED WALKER Executive Assistant

NOLA WHITE First Assistant

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