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 an opinion reads as follows: 

"Recently there have been many requests by private 

individuals for permission to examine the personnel 

records of the House of Representatives. These 

records are in the custody of the Committee on House 

Administration. 

"Some of the information in these records might 

be considered privileged or confidential, such as 

applications for employment. 

"Your opinion is respectfully requested with 

regard to the following questions: 

" 1 . Under the applicable law and legislative 

resolutibns, to what 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 . To what extent would the chairman or a 

member or employee of the Committee on House Administration subject himself to liability, for invasion of the right of privacy or for libel or 

slander as a result of voluntarily 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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Hon. James Cole, page 2 (M-1172) 

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 is provided for in certain instances by statutes 

and, in other 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 is dependent upon the various statutes applicable 

to particular records. We will quote from a few Attorney 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 30A of 

Article 6687b, Vernon's Civil Statutes, a list of 

each person who applies for or receives public 

assistance as a needy blind person, regardless of 

the existing provisions of Section 33 of Article 

695c, Vernon's Civil Statutes." 

Attorney General's Opinion M-452 (1969): 

"Accident reports submitted by peace officers 

to the Department of Public Safety after January 1, 

1970 are public records and a copy of such accident 

report en toto must be furnished to any person re- -- 

questing same and paying a $2 fee. The Department 

may not detach a portion 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 the medical records of the 

deceased former patient who died shortly after his 

discharge." 

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Hon. James Cole, page 3 (M-1172) 

Attorney General's Opinion M-317 (1968): 

"(1) The Texas Department of Mental Health 

and Mental Retardation may furnish to local community centers the medical records of persons 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 on persons treated by such 

local community centers." 

Attorney General's Opinion M-213 (1968): 

"Any officer of this state charged with the 

enforcement of its laws may be shown the notices, 

orders, records and publications in custody of the 

Texas Liquor Control Board, which are made 'privileged' documents under Article 666-12a(5), Vernon's 

Penal Code. Such records, etc., may also be produced in the course of some proceeding in which the 

Board or the state is a party (either judicial in 

nature or in an action instituted to suspend or cancel the permit or to collect taxes due or penalties 

for violation of the laws of this state), and may 

be presented 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 is not to be publicly 

disclosed except for such purposes and to such authorized officials except where such information has 

become a matter of public record as a result of legal 

proceedings of the nature specified, including hearings before the Administrator on violations of Texas 

liquor laws." 

Attorney General's Opinion M-295 (1968): 

"The Securities Commissioner is an 'Officer of 

the State charged with the enforcement of its laws,' 

pursuant to Article 581-28, Vernon's Civil Statutes, 

and within the meaning of Article 12.10, Title 122A, 

Taxation-General, Vernon's Civil Statutes, and is 

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._ 

Hon. James Cole, page 4 (M-1172) 

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): 

"The Commissioner of Insurance, being an 'Officer of the State charged with the enforcement of 

its laws,' pursuant to Article 1.09(a), of the Texas 

Insurance Code, and within the meaning of Article 

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 is our opinion that whether certain records are required to be made available for a limited or unlimited inspection 

is dependent upon the nature of the records and the authority to 

inspect them provided by various statutes as well as the justiciable 

interest of the person seeking to make 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. no writ); 

Pruett v. Burr, 257 P.2d 600 (D.C. Calif. 1953); Mathews v. Pyle, 

75 Ariz. 76, 251 P.2d 893 (1952); Sorley v. Lister, 218 N.Y.S.2d 

215 (1961). 

We have been unable to find any statutory provision making personnel records described in your request "public records". 

See Mathews v. Pyle, 75 Ariz. 76, 251 P.2d 893 (1952). Neither 

have we been able to find any statutory provision requiring or 

authorizing inspections of personnel records described in your request, and it is our opinion that a private 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 is required to produce personnel records for 

examination by private individuals. 

In this connection as well as in answer to your second 

question, we observe that the personnel records are not by statute 

made confidential or privileged records and there is no law generally of which we are aware which would prevent the voluntary discretionary disclosure of various information that may be in these 

records by the Committee on House Administration, the custodian of 

the records. The particular information to be so divulged would 

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Hon. James Cole, page 5 (M-1172) 

no doubt be dependent upon the nature of the particular record 

involved and the wrong, if any, resulting from the examination. 

For that reason, we are unable categorically to give any precise 

answer to your second question. It is our opinion that generally it is within the sound discretion of the custodian of the 

records as to what information or portion of the record he may 

see fit to~disclose to the public, subject, however, to the 

necessary qualification that he should not make a disclosure 

that would violate the right of privacy of the individual concerned or that might subject the custodian to a meritorious 

defamation action. 

A tort action arising out of publication, written or 

oral, for invasion of the right of privacy is now recognized in 

a majority 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, no writ); McGullach 

v. Houston Chronicle Pub. Co., 211 F.2d 4 (5th Cir. 1954); Billings 

v. Atkinson, 471 S.W.2d 908, 912-913 (Tex.Civ.App. 1971, error 

granted)- 46 Tex.Jur.2d 317, Privacy; 23 Baylor Law Rev. 117, 

120, 126; 133. However, Texas courts have afforded limited relief 

in cases of physical invasion of one's person or property, 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 & Sarnd Co., 128 S.W.2d 471 (Tex.Civ.App. 1939, no writ): 

Lyle v. Waddle, 144 Tex. 90, 188 S.W.Zd 770 (1945); Hushes v. 

- State, 67 TEex.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. .47 U.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. In Maresca 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 "The protection of privacy is of fundamental -- indeed, of 

constitutional importance" and that such discovery "is sustainable only because the pursuit of justice outweights protection of 

their privacy." 

A limitation upon the right of privacy has likewise been 

noted, and it has been held that the right does not extend to 

those facts which are "newsworthy" and in which the public has a 

legitimate interest. Mahaffey v. Official Detective Stories, 

210 F.Supp. 251 (W.D. La. 1962). 

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

Several federal decisions by the United 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, 381 U.S. 479 (1965); Sweezy v. New Hampshire, 354 

U.S. 234 (1957); De Gregory v. Attorney General of New Hampshire, 

383 U.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 

to privacy should not prohibit any disclosure of matter which is 

of public or general interest. This is somewhat similar to the 

privilege of fair comment on matters of public and general interest in the law of defamation. 

,The disclosure problem with which we are concerned is 

discussed in an article, "Defamation, Privacy, and the Public's 

Right to Know: A National Problem and a New Approach," 46 Tex. 

Law Rev. 630, 633, wherein it was observed that it "encompasses 

three disparate and often conflicting interests. Defamation and 

privacy work to restrict publication, whereas the essence of the 

third interest -- the public's right to know -- is free and unfettered communication. Where interests conflict, it is both 

necessary and desirable to resort to a balancing test, assuming 

of course that each interest is given a weight vis-a-vis the 

others commensurate with its own importance." 

With reference to defamation, the U.S. Supreme Court 

has held that a defamatory comment concerning public officials 

or certain other public persons fell within the protection of the 

first amendment to the United States Constitution and no recover" of damaaes mav be awarded without a showina of actual 

malice. New York Times Co. v, Sullivan, 376 U.S.-254 (19649. 

This includes a tort action for the invasion of privacy by mass 

publicity. Time, Inc. v. Hill, 385 U.S. 374 (1967). Actual 

malice must be shown under Texas decisions to circumvent the 

defense of fair comment. Broadstreet Co. v. Gill, 72 Tex. 115, 

9 S.W. 753 (18889. 

It is also noted that the defense of "fair and accurate 

comment and criticism" exists in the field of libel. 23 Baylor 

Law Rev. 127. 

In the "personnel records" of the House of Representatives, many items proper as well as improper for disclosure might 

be found. We know of no requirements as to what matters may or 

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HOG. James Cole, page 7' (M-1172) 

may not be inserted therein. Many matters therein may possibly 

be found in certain public records required to be maintained 

and surely these matters might properly be disclosed if not 

otherwise objectionable as previously discussed. 

In addition, certain other matters might be properly 

described which are of public interest which are directly related to the governing process and which follow within the general 

guidelines set out above, such as the name of the person 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 the personnel records in the custody of 

the Committee on House Administration of the House 

of Representatives are not "public records" and there 

is no common law right to inspect them by the members 

of the public, nevertheless they are not by statute 

privileged or confidential, and it is within the 

sound discretion of the custodian of the records to 

disclose certain proper information therefrom in which 

the public has a right to know and which would not 

violate the right of privacy of the individual concerned or give rise to a meritorious action for defamation. 

Prepared by John Reeves 

Assistant Attorney General 

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Hon. James Cole, page 8 (M-1172) 

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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