             THE       ATTORNEY    GENERAL
                          OF TEXAS
                        Auemm.Tncste          787ll



                                                                .
                                March 15, 1974



Senator H. J. “Dod’Blanchard                    Opinion No. H- 258
Chairman, Senate Legislative    Property   Tax Comm.
State Capitol Bldg.                             Re:   Whether specific hformation
Au&in, Texas 78711                              re sales of property is disclosable
                                                under Open Records liaw.
Dear Senator Blanchard:

       Your opinion. request requires us to determine whether the Open
Records Act, Art. 62 52-17a, V. T. C. S., would make available to the
public certain financial information the Legislative Property Tax Committee
(hereafter LPTC) proposes to gather from private sources as part of a.
study of the market value of the property in selected school districts.

      In connection with an effort to formulate more equitable methods
for the distribution of state financial aid to local school districto, the
LPTC has been asked to ascertain the current market value of the
property in each of. Texas’ school districts.    In order to fulfill this
request, the LPTC proposes to conduct an %udit”of market values and
current property tax asaesements in selected school districts.          Infor-
mation for the audit would be solicited from private sources in the
#ample districts by means of questionairss.

       For example, individuals who had recently been party to a transfer
of real property would be asked to supply information on the sales price
and terms of the transaction.    Selected commercial and industrial firms
would be asked to provide the book value, depreciation reserves,    and
estimated market value of theirinventory.    equipment, and other personal
property.   Private appraisal firms would be requested to disclose the
value at which they had appraised railroads,   timber, factories, and
other’like high value properties.




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             The Honorable   H. J. Blanchard.   page 2   (H-258)


                   Because of time limitation, the LPTC proposes to solicit the needed
             information on a voluntary basis, but it does not expect much of a response
             unless confidentiality can be promised.   You ask whether the.financial
             information obtained by means of the questionnaires could be retained
             by the LPTC as confidential or whether instead the Open Records Act
             would require the LPTC to make this information available to the public.
             You also ask several, more specific questions concerning the applicability
             of particular exceptions in the Act each of which we will address later in
             the opinion.

                    However, your queations do not involve specific requests for
             information which have been submitted to us for determination under
             f 7 of the Open Records Act.    You have instead asked for advice which
             we can render under Article 4399, V. T. C.S.     It should be borne in
             mind that the following discussion indicates the general conclusions we
             draw from the present state of the law, but that the particular facts
             surrounding a particular request submitted to us under § 7 of the Act
             may call for different conclusions at that time.   We do not here pre-
             judge any question which may later be presented to us pursuant to 5 7
             of the Act.
        -.

                     The purpose of the Open Records Act is to make information
              concerning the affairs of government available to the public.    Its pro-
              visions are to be liberally construed in order to effectuate ite purpose.,
             (§ 1.1

                     Section,3(a) of the Act states that, subject to sixteen exceptions,
              all information collected, assembled,     or maintained by governmental
              bodies pursuant to law or ordinance or in connection with the transaction
              of official buriness is public information and available to the public.
              Thus the legislative plan creates a liberal disclosure requirement,
              limited only by specific exceptions.

                     The LPTC is plainly a “governmental body” as that term is defined
              in 9 2(1)(A) of the Act.   At first blush, then, all the information it
              gathers to available to the public unless one of the exceptions set out in
              $ 3(a) of the Act applies.   A threshold question implicitly presented by




                                                   p. 1204
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                 me      Honorable H. J. “Dot”   Blanchard,   page 3   (H-258)




             your opinion request, however, is whether the Open Records Act precludes
             governmental bodies such as the LPTG from conducting authorisad inverti-
             gationr or rurveym on a confidential basis.
                                                                      .

                        It is our opinion that, unless authorized    to do so by law, governmental
                 bodies are now prevented by the Open Records Act from accompanying
                 a request for information with a promise to keep it confidential,      A contrary
                 conclusion would mean that a governmental body could shield any information
                 it gathers from the public eye simply by guaranteeing the source of that
                 information that it would be kept secret--a    possible result we do notbelieve
                 the Legislature intended.     Therefore when a governmental body conducts
                 an authorirad investigation,    the information it collects is eubjett lo. tbs
                 disclosure requirements of the Open Records Act. as tempered by the
                 mixteen excaptionr tbe Act contains, unless that body is expressly autborired
                 by law to keep the information confidential.
    ..
                         While the LPTC is given broad power to subpoena witnesses and to
                 order the production of any releuant information. nowhere in its enabling
                 legislation or, to our knowledge. in any other rtatutory enactment is it
                 expressly authoriced to keep the results of its investigations confidential,
                 Art. 7100. V.T.C.S.      See al&the   Legislative Reorganisation Act of
                 1961. Art. 5429 f, V. T. C.S.    Prior to the advent of the Open Records
                 Act, .it might have been. argued that the LPTC possesaed such authority
                 under the doctrine of implied.powers.     St. Clair v. Harris County Water
                  Control andhnprovement     District No. 21, 474 S. W. 2d 545, 548 (Tex.
                  Civ. App., Houston [14th Dirt. 1, 1971, no writ), but see Attorney General
                  Opinion WW-1235 (1962),

                           Finding no specific statutory authorization for not Publicly disclosing
                     Ouch information, we now turn to the question of whether such authorization
                     can be found elsewhere in § 3 (a) of the Open Records Act.

                           In your opinion request you referred us to several provisions in the
                     Act which arguably might except financial information of the kind the
                     Committee’proposes    to gather from public disclosure.  First you suggest
                     that such information might be protected by either the common law or




                                                         p. 1205
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        The Honorable   H. J. *DDoc”Blanchard,     page 4   (H-258)


        constitutional right of privacy.   If so, the information would be
        “information deemed confidential by law, either Constitutional,
        ltattitory. or by judicial decision” and would be excepted from disclosure
        by 5 3 (a) (1) of the Act.

              A common law right of privacy has recently been recognized by the
        Texas Supreme Court in Billings v. Atkinson, 489 S. W. 2d 858 (Tex. 1973).
        The right was said~to encompass:

                         ‘1. . . the right to be free from the unwarranted
                    appropriation or exploitation of one’s personality,   the
                    publicizing of one’s private affairs withuhich the public
                    has no legitimate concern, or the wrdngful intrusion into
                    one’s private activities in such manner as to outrage or
                    cause mental suffering. shame or bimiliation to a person
                    of ordinary sensibilities.   ” (489 S. W. 2d at 859).

               This definition is similar to that offered in other decisions recognizing
        a common law right of privacy.      But in none of these cases have an individual’s
        financial matters,    such as the cost of his house IX’the value of his business
        property, been involved.     Application of the right of privacy has usually been
        confined to situations involving publication of highly embarrassing      information
        about an individual’s personal affairs or habits. See Prosnner, The Law of
        Torts, (3rd cd. 1964. pgs. 839-851).     (4th cd. 1971, pga. 802-818),  62 Am.
        -2d.       Privacy, pgs. 677-755 and cases cited therein, and Attorney-
        General Opinion H-90 (1973).

                The United States Constitution also creates a right of privacy
         potentially even broader in scope than that created by the common law.
         Attorney General Opinion H-90 (1973).     But so far it too has been limited
         in its application to protecting only personal rights that are deemed
         fundamental or implicit in the concept of ordered liberty.     Roe v. Wade,
         410 U. S. 113, 35L. Ed. 2d 147, 176 (1973).   The constitutional right of
         privacy guarantees the individual some freedom from governmental




                                              p. 1206
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                  The Honorable H. J. q’Doct’ Blanchard,      Page 5     (H-258)


                  interference when engaged in activities relating to marriage,     procreation,
                  contraception,  child rearing, etc.  Roe, supra, at 177 and cash cited
                  therein. 1-t has not as yet been extead    to afford him the . aame kind of
                  privacy with respect to his financial affairs.

                         The exemption of 0 3 (a) (1) of Article 6252-17a extenda to “infor-
                  mation deemed confidential by law, either Constitutional, statutory, or
                  by judicial decision. II Despite our strong belief in and appreciation of
                  the importance of the right of privacy, until one of these sources holds
                  that financial information of the kind involved here is confidential, we
                  do not feel that we are authorized to extend the 3 (a) (1) exemption to
                  the information about which you have inquired.

                         It is our oirr opinion, then, that ordinarily financial information
                  of the kind sought by the LPTC has not been protected from disclosure
                  by either the constitutional or common law right of privacy.       Moreover
                  even if such information were protected under the privacy doctrine.
                  an individual who voluntarily supplied it to the LPTC by filling out a
                  questionnaire might well have waived his right to assert that doctrine.
                  See 62 Am Jur. id, Privacy 5 18, Pg. 703, and Schneckloth v. Bunta-
                  man@ U.S. 36 L. Ed. 2d 854 (1973).

                          You next call our attention to 0 3(a) (lg) of the Open Recorda Act
                   which excepts from disclosure “trade secreta and commercial or financial
                   information obtained from a person and privileged or confidential by
                   statute or judicial decisions.    Section 3 (a) (10) is similar to .the provisions”
                   in the federal Freedom of Information Actwhich excepts from disclosure
                   under that act “trade secrets and commercial or financial information
                   obtained from a person and privileged or confidential.        ” 5 u. s. c. k
                    5 552 (b) (4) (1967). The “financial information” exception made in the
                    federal act has consistently been interpreted to permit federal agencies
                    to withhold financial information which a private individual wibhes to
                    keep confidential for his own purposes but reveals to the government
                    under the express ox implied promise by the government that the informa-
                    tion will not be released to the public.   General Services Administration
                    v. Benson, 415 F. 2d 878, 881 (9th Cir. 1969). See also Getman v. NLRB,




                                                         p. 1207
The Honorable   H. J. “DOE” Blanchard,        page 6    (H-258)


450 F. 2d 670 (D. C. Cir. 1971); Sterling Drug Inc. v. F. T. C., 450 F.
2d 698 (D. C. Cir. 1971); and Bristol-Myers Co. v. F. T. C.‘, 424 F. 2d
935 (D. C. Cir. 1970).
                                                                  .

        But, under 5 3 (a) (10) of the State Act. it is not enough that the
individual supplying the information expect it to be kept confidential;
to the requirement in the federal act that the information be “privileged
or confidential”   the Legislature tacked on the additional requirement
that it be made so “by statute or judicial decision. ‘I In order to be
exempt from disclosure under 5 3 (a) (lo), then, information must be
(1) either trade secrete or commercial/financial        in nature, (2) obtained
from a person, and (3) privileged or confidential by statute or judicial
decision. Because of this last requirement.       it is unlikely that, as
presently written, 5 3 (a) (10) exempts from disclosure any. information
not already exempt under 5 3 (a) (1). Since to our present knowledge
there are no statutes or judicial decisions making financial information
 gathered by the LPTC confidential, such information would riot be
 excepted fr6m disclosure by 0 3 (a) (10).

    :.’ A thiid exception to which you point is 5 3 (a) (4) which permits
governmental’bodies     to withhold “information which, if released, would
give advantage .to competitorU%or bidders.”        We do not believa +e
release of information such as the terms of a real estate transaction,
the estimated value of business personalty.      or the value at which an
appraisal firm has appraised certain property ordinarily would give
any advantage to competitors of the individuals providing that information.
Therefore financial information of the kind sought by the LPTC ordinarily
would not be’excepted from disclosure under the Open Records Act by
I YaH4).

      Finall$ you suggest that the Open Records Act might permit the
LPT’C to withhold the raw financial data~it collects by means of the questionairee
while requiring it to release that information when summarized.afrd tbtaled.
But the 0pen Records Act makes available to the public all information col-
lected by governmental bodies regardless of what form G        in or what it is
to be used for, unless one of the exceptions to the Act is found to apply. The
Act makes no distinction between raw data and data contained in summarized
form.




                                      p. 1208
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                                   The.Honorable   H. J. ?Doc” Blanchard,      page 7     (H-258)



                                          In conclusion it is our .opinion that the disclosure requirements of
                                   the Open Records Act do apply to the financial information the LPTC
                                   proposer   to gather and that none of the exception8 in 0 3 (a) of tke Act
                                   likely would permit the LPTC to withhold such informatioh from the
                                   public.

                                                                  SUMMARY

                                                   Financial information of individuals collected
                                               by the Legislative Property Tax Committee during
                                               the course of a study of market value ‘does not come
                                               within any of the exceptions of 5 3(a) of Article 6252~178,
                .            r
                                               V. T. C. S. , and is public information subject to dirclo-
                                               sure.

                                                                    Aours   very truly,




      ,_. --.
                    -.                                               Attorney General of Texar




                                     DAVID M. KENDALL..      Chairman
                                     Opinion Committee




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