                                                    The Attorney       General of Texas
                                                                   October 24, 1983
    JIM MATTOX
    AttorneyGeneral


    Supreme   Court Building                      Honorable Mike Driscoll               Opinion No. JM-81
    P. 0. Box 12546                               Harris County Attorney
    Austin. TX. 76711. 2546
                                                  1001 Preston, Suite 634               Re: Are names and addresses of
    5121475-2501
    Telex    9101674-1367
                                                  Houston, Texas   77002                parents of victims of sudden
    Telecopier     5121475-0266                                                         infant death syndrome available
                                                                                        to the public under the Open
                                                                                        Records Act
    714 Jackson,    Suite 700
    Dallas.   TX. 75202-4506
    2141742-6944                                  Dear Mr. Driscoll:

                                                      You have asked the following question:
    4624 Alberta           Ave., Suite      160
    El Paso. TX.           79905-2793
                                                              Can a sudden infant death syndrome (SIDS)
    915/533-3464
                                                           project formerly federally funded, but now funded
                                                           by Harris County and operated by the Harris County
PlOOl          Texas.    Suite 700                         Health Officer, release the names and addresses of
        .,ous,on,     TX. 77002-3111                       SIDS parents?
        7131223.5666

                                                       As set forth in your brief, the relevant facts are as follows:
    606 Broadway.            Suite 312
    Lubbock,   TX.          79401.3479                        Prior to the effective date of the Federal
    6@31747~5236                                           Omnibus Budget Reconciliation Act of 1981, the
                                                           HalTAS County Health Officer WBS the local
        4309 N. Tenth. Suite 8
                                                           administrator for a federally funded Sudden Infant
        McAllen,     1-X. 76501.1665                       Death Syndrome (SIDS) Project. The purpose of the
        5121662-4547                                       project was to collect information about SIDS and
                                                           to provide counseling services to the parents of a
                                                           SIDS victim. The names and addresses of suspected
        200 Main Plaza. Suite 400
        San Antonio.  TX. 76205.2797
                                                           SIDS victims and their parents were provided to
        5121225-4191                                       the project by the County Medical Examiner. A
                                                           project nurse would contact the victim’s parents
                                                           and offer the counseling services of the Project.
        An Equal       Opportunity/
                                                           The parents were also referred to voluntary
        Affirmative      Action       Employer
                                                           community     organizations,     including     the
                                                           Houston-Harris County Chapter of the National SIDS
                                                           Foundation.

                                                               To the disappointment of the Houston Chapter, a
                                                            number of the parents did not contact the Chapter
                                                            after the initial referral by the Project. This
                                                            lack of participation prompted the Houston Chapter
                                                            to request the names and addresses of all parents.




                                                                            p. 343
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Honorable Mike Driscoll - Page 2   (JM-81)




          Upon receipt of this information the Chapter could
          initiate direct contact with the parents. On the
          advice of the Texas Department of Health Legal
          Division, the names were released without the
          consent of the parents.

             Federal   funding for    this project ended
          September, 1982.    Through its Health Officer,
          Harris County continues to operate the Project
          using County funds. The operation of this Project
          is for a proper County purpose and a proper use 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 determine whether the names and
          addresses are excepted from public 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 information must also not be of legitimate concern
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 Decision Nos. 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 shortcoming on the parents'
part. As a result, we believe that the publication of the names of
non-consenting parents whose children died from SIDS would 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
information could be "highly embarrassing" to these parents, and would
be objectionable to 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 imagine many kinds of information more
"highly intimate" to a parent than the death of a small child by a
sudden, unexplained cause.




                                   p. 344
Honorable Mike Driscoll - Page 3   (JM-81)




     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
decisions have focused upon privacy in the context of an individual’s
“autonomy,” i.e., his right to decide for himself whether “to undergo
certain experiences or to perform certain acts,” “disclosural privacy”
is also deserving of protection. Id. It stated:

          We   believe,    nevertheless,    that   effective
          protection of the fundamental ‘zones of privacy’
          thus far outlined by the Supreme Court necessarily
          implies a concomitant right to prevent unlimited
          disclosure of information held by the government
          which, although collected pursuant to a valid
          governmental objective, pertains to activities and
          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 disclosure would be highly objectionable to a person of
ordinary sensibilities.”

     To be excepted from required disclosure under common law privacy,
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 consequence by a failure to make public
the names of parents of SIDS victims. Nothing indicates, for example,
that SIDS is a contagious disease.

     A child’s death from SIDS might also be contrasted from a child’s
death from physical abuse by a parent. While a parent’s physical




                                    p. 345
Honorable Mike Driscoll - Page 4   (JM-81)




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
entirely different. In such an instance of physical abuse, the public
interest is sufficient to 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
intimate or embarrassing facts."

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

                             SUMMARY

             The names of parents whose children have died
          from SIDS are protected from required disclosure
          by the common law right of privacy, and may not be
          released without the parents consent.




                                       JIM     MATTOX
                                       Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Nancy Sutton




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