           T133    AV~NBRNEY            GENERAL
                          OFTEXAS




Honorable James Cole                   Opinion No. M- 1172
State Representative
Chairman, Committee on                 Re:   Conditions and circum-
   House Administration                      stances under which the
Capitol Station                              Committee on House Ad-
Austin, 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 con-
     ditions and circumstances must the Committee on
     House Administration or its chairman produce these
     personnel records for examination by private in-
     dividuals?

           "2 . To what extent would the chairman or a
     member or employee of the Committee on House Ad-
     ministration subject himself to liability, for in-
     vasion 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 administra-
tion of the House of Representatives, you have not advised us of

                              -5717-
                                                                  . .   ,




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 regula-
tions 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 statisti-
     cal 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."



                            -5718-
.




    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 com-
        munity centers the medical records of persons who
        have been treated in its institutions who are
        residents of the region served by the local com-
        munity center.

              "(2) Community centers may furnish to the
         Texas Department of Mental Health and Mental Re-
         tardation 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 'privi-
         leged' documents under Article 666-12a(5), Vernon's
         Penal Code. Such records, etc., may also be pro-
         duced 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 can-
         cel 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 en-
         acting informed legislation regulating the liquor
         industry.  The business information furnished by
         licensees or obtained by the Board through in-
         spection of licensed premises is not to be publicly
         disclosed except for such purposes and to such au-
         thorized officials except where such information has
         become a matter of public record as a result of legal
         proceedings of the nature specified, including hear-
         ings 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


                                -5719-
                                                                 ._




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 'Of-
     ficer 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 re-
quired 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 mak-
ing 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 re-
quest, and it is our opinion that a private individual does not
have a common law right to inspect those records. You are there-
fore 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 general-
ly of which we are aware which would prevent the voluntary dis-
cretionary 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

                            -5720-
.




    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 general-
    ly 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 con-
    cerned 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 recog-
    nized 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
                deal% with wrongful
    Texas has dealt        wronaf   acts as iilegal searches both by
    statute and judicial decision.    Shell Petroleum Corp. v. Liberty
               Sar Co., 128 S.W.2d 471 (Tex.Civ.App. 1939, no writ):
    Gravel & Sand
    Lyle v. Waddle,
             Wadd     144 Tex. 90, 188 S.W.Zd 770 (1945); Hushes v.
    State,
    -       67  TE
                Tex.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 sustain-
    able 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).


                                -5721-
                                                                    . .   .




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 as-
sociation 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 in-
terest 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 un-
fettered 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 re-
cover" 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 Representa-
tives, many items proper as well as improper for disclosure might
be found. We know of no requirements as to what matters may or


                            -5722-
.   ..-




          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 re-
          lated 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 con-
               cerned or give rise to a meritorious action for de-
               famation.




          Prepared by John Reeves
          Assistant Attorney General




                                         -5723-
                                        .-




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




                           -5724-
