*1 disagree majority’s I further with the
interpretation merits relator’s
proof. majority relator’s describes “based appeal
claim to a of free unsupported
hеr assertion that she unable no Citing authority, majority work.” explain why
fails to uncorroborated testi work,
mony by relator she is unable unquestioned unimpeached
when
record, her claim. support is insufficient
I case distinguish “parallel” further Coker, (Tex.Civ.
Tubbs v. writ) from the
App. —Houston Tubbs, re case because in relator “loan,” monthly payment, albeit a
ceived spent, pre a relative which could be Also,
sumably, at relators discretion. she recently received a “substantial” sum
had
of money as a result of an automobile acci case, In the relator’s son and
dent. grocer her her
daughter pay buy bills and
ies, give money spend rather than her
her discretion. that relator
The record before us reveals the cost pay appeal.
cannot grant petition
therefore relator’s
writ of mandamus. HUBERT, Individually W.R.
Dr. Frank Capacity as Chancel
and in His Official University Sys A of the Texas M
lor &
tem, al., Appellants, et
v. TEXAS NEWSPA
HARTE-HANKS INC.,
PERS, Bryan-College d/b/a Eagle, Appellee.
Station
No. 13580. Texas, Appeals
Austin.
May 8, 1983.
Rehearing June Denied *2 Donaldson, Jr., Graves, H. Dough-
David Austin, Moody, appellee. Hearon & erty, PHILLIPS, C.J., Before and SHANNON POWERS, JJ. SHANNON, Justice.
Appellee Newspa- Harte-Hanks Texas Inc., pers, doing Bryan as the business Bryan-College Eagle, filed suit Station the court of Travis County district Hubert, appellants Dr. Frank Chancellor of A University System, the Texas & M the M, Regents Board of Texas A the & Advisory “Search the Board Committee” of twenty-eight persons who Regents, are members of the Board of or the Regents Advisory Appellee “Search Committee.” suit a writ its of mandamus Act, pursuant Open 8 of the (Supp. art. 6252-17a Tex.Rev.Civ.Stat.Ann. 1982)1 compelling appellants to make avail- able the names and of candi- qualifications president the dates for office of of Texas A trial, & M. After a the bench district signed an order granting writ appellants commanded to release all of the Kronzer, Kronzer, Abraham, W. James ap- candidates’ names and Watkins, Nichols, Friend, Ballard & pellee. Hous- This Court will affirm the order of ton, for appellants. the district court. general provision Records Act was enacted Section legislature Act, collected, in 1973. 1 of a provides Section information “[a]ll policy, declaration of assembled, states: by governmental or maintained philosophy pursuant Pursuant to the fundamental bodies to law or ordinance or con- repre- American constitutional form of with the nection transaction official business government sentative principle which holds to the public pub- information and available to the government is the servant Eighteen exceptions general lic” to this people, them, the hereby and not the master of it is requirement, exception disputed including the public policy declared to be lawsuit, in this are then listed. are, persons State of Texas that all unless proce- Sections and 8 of the Act set forth the law, expressly provided by otherwise all when dure to followed information re- complete times entitled to full and informa- body quested governmental A the Act. regarding government tion affairs receiving request which it information represent acts official of those who them excepts may, section believes employees. peo- officials and days, attorney general’s request within 10 ple, delegating authority, give do not their public. opinion as to whether information servants the decide what attorney general If deems good people to know and what is not public, agency must make the infor- good people for them to know. The insist on person requesting it. If mation available to the remaining they may informed so that retain agency comply attorney refuses to with the they control over instruments have creat- general’s ruling, party seeking informa- end, provisions ed. To that of this Act may bring suit for writ of mandamus to liberally shall be construed the view compel disclosure. carrying out the above declaration of policy. defending the suit for manda- Board vented from the Texas A & M August file a suit chal- mus because failed to Advisory Regents created “Search with- attorney general’s opinion lenging assistance in provide Committee” to it, (2) days after received presi- in three
search for candidates for the office is ex- ap- requested whether the regents A M. The dent of Texas & 3(a)(2) of the cepted from disclosure pointed Dr. Frank Hubert to be executive *3 Records Act. ap- Open Also officer the search committee. ac- pointed to the committee were Texans In of the district court’s or support education, business, industry.. tive in der, arguеs appellants are appellee committee nominations 3(a)(2) excep asserting barred from § and, evaluating after president, office as a defense to the suit in mandamus nominees, hun- a list of one prepared the attor challenge because failed to The list was nar- seventy-one dred names. af days within three ney general’s opinion names persons, rowed to whose thirty-five with the receipt. agree its We do not ter Re- were recommended to the Board of its contention Appellee bases argument. gents. that a 10(b) states 10 of the Act. Section In while the search was January a crimi commits public custodian of records Dr. Hubert process, appellee requested if, neglig acting with criminal nal offense of all qualifications furnish the names and records public he refuses to release ence,3 considered presidential candidates provi under the requesting them anyone Dr. Hu- Advisory Committee. Search assert The custodian sions of the Act. information, but produce bert did not prose to criminal as an affirmative defense counsel, request prepared on advice of within three cution under this section that opinion attorney general of an unfavorable working days receipt to be required the information was whether he filed a cause attorney general’s opinion, Act. In Open Records disclosed under compliance from seeking action relief ruled that attorney general June 10(c)(3). The Act opinion. with Section candidates the names and filing protect of such suit provides for committee must be considered the search liability. records from criminal custodian of disclosed, the committee’s final but his pursues records party seeking If the recommendations on candidates mandamus, the Act a suit for remedy, civil memo- Regents intra-agency were Board may file that the custodian provide does not general from the excepted randa attorney challenging the separate suit Act requirement inabil But the custodian’s general’s ruling. 3(a) Att’y Tex. Gen. ORD- of the Act. opin attorney general’s challenge ity (1981). attorney general’s After does liability criminal except preclude ion released, appellants continued opinion prevented will be not mean the custodian disclosure, resulting appellee’s to resist mandamus action that asserting in the Appel- court’s order. suit and the district excepted are from disclosure. the records request nor did the district lants did proceeding, In the mandamus conclusions of findings of fact and court file upon any grounds official re-assert law.2 excepted the record which he deems requirement general court’s or- from the attack the district
Appellants agrees court Act. If the district points four of error der the re- official and concludes pre- (1) appellants issues: whether two negli- statutory “criminal definition of Appellee argues For the that because the district 3. 6.03(d) findings gence,” Ann. fact and conclusions see Tex.Pen.Code court filed no upon law, appeal be determined should agreed with court the basis that appellants the district they urged, applied but test against them. We de- still resolved the case upon judgment that basis. cline to affirm the quested exempt information to dis- business is information and availa- closure, If, mandamus will not lie. how- public during ble to the normal business ever, the district determines the infor- any governmental body, hours of with the disclosed,4 mation must be the official must following exceptions only: information, release the to his subject (1) confidential by information deemed appeal the order of the district court. law, Constitutional, statutory, either In appeal, appellants could decision; by judicial not challenge opinion the attorney general’s (2) filеs, personnel information in a separate attorney lawsuit. After the disclosure of which would constitute ruled, general appellants’ course only clearly personal unwarranted invasion comply opinion action was to with the however, that privacy; provided, all in- refuse to release records and contest the of an formation in files individ- proceeding by appellee.5 mandamus brought ual within a employee governmental body however, mandamus proceeding, ap- is to be made available to that individual pellants properly asserted their contention *4 employee designated representative or his that the requested materials were excepted as is public information under this 3(a)(2) from disclosure under of the Act. § Act.... The district disagreed appellants’ with Appellants (a)(2), relating insist subsection contention and ordered appellants to com- files, personnel prohibits in information with ply attorney general’s opinion. On disclosure of by ap- the information Court, appeal to this appellants properly concedes, pellee. Appellee argu- for sake of assert as a of point error their contention ment, the material seeks is information that the distriсt court erred in holding that file,” “personnel contained in a but main- 3(a)(2) protect did § not the names and tains the disclosure of that information does of from candidates disclo- not “a clearly sure. constitute unwarranted inva- personal sion of privacy.” Appellants claim are required The between dispute parties focuses disclose names and qualifications of the clearly candidates on how “a unwarranted invasion of Advisory Search Committee considered 3(a)(2) personal privacy” because should be determined. Open § Records excepts Appellants Act this urge adopt information from Court to a bal- disclosure. 3(a) Section provides in rele- ancing weighing person’s right test part: vant public’s privacy interest in dis-
(a) All closure collected, applied by which the federal information assem- bled, or by governmental maintained courts to decided bod- cases under Freedom ies pursuant Act, (1977 to law or 5 552 ordinance or in Information U.S.C. & § connection asserts, Supp.1982).6 Appellee transaction official on the other determining In general’s attorney ruling whether re- without resort quired, Comment, give legal proceedings. the district court should due con- to further The attorney general’s opinion. Sectiоn-by-Section sideration Opinions Open Texas Records Act: A attorney general, Analysis, 398, while not 14 Hous.L.Rev. 430 courts, binding persuasive. E.g., on the County, 927, exception Jones v. Hutchinson S.W.2d 6. The 615 relevant the federal (Tex.Civ.App.1981, writ). 931 Freedom of Information Act is 5 U.S.C. 552(b)(6) (1977), provides “personnel § Supreme recognized 5. The Court has that an and medical files and similar files the disclo agency may, proceeding, clearly in the mandamus con sure of which would unwar constitute personal test privacy” exempt disclosure. Industrial ranted Foundation invasion Board, South v. Texas Industrial Accident 540 from disclosure. federal courts balance 668, (Tex. 1976). Appellees’ public’s obtaining S.W.2d 678 fear informa give privacy. See, binding right that our refusal effect to tion with the individual’s attorney Rose, general’s opinion e.g., Department in the of Air 425 U.S. mandamus Force v. proceeding (1976); procedure pro will render the 96 48 11 S.Ct. L.Ed.2d curing opinion Campbell a futile exercise is unfound v. United States Civil Service Com mission, agencies (10th Cir.1976). requesting opinions ed. Most abide 539 F.2d
hand,
this Court’s determination
3(a)(2).
proper test,
claim,
whether disclosure would
an un
constitute
one balancing
person’s
privacy
warranted invasion of
should
against the public’s interest in
as
guided by
holding
Founda
Industrial
applied by the federal courts in cases decid-
tion of the
v. Texas
Acci
South
Industrial
ed under the Freedom of Information Act.
Board,
(Tex.1976).
dent
Foundation,
Industrial
the Supreme Court
3(a)(2)
language
Nothing
interpreted
excepted
what
information is
balancing
either
federal
indicates that
disclosure under
test
Foundation
test or
the Industrial
availability
restricts
cases
determining
employed
should
“deemed
by judicial
confidential
...
deci-
involving “information
sion.” The
petitioner
Industrial Founda-
Nevertheless, this
has deter
files.”
tion contended that
information which mined,
Founda
that the Industrial
finally,
formed
basis for an invasion of
confiden
test for information deemed
tort under Texas law is
of infor-
type
law
tial
under §
mation which should be deemed confidential
3(a)(2).
apply
Act
also to §
should
by the
Specifically, any
courts.
analy
Foundation
the Industrial
Applying
which,
publicized by
a private person,
federal
adopting the
3(a)(1), and
sis to §
person
would render
liable for
tort
urged
3(a)(2), as
balancing test for §
i.e.,
invasion
privacy,
“public
disclo-
unnecessary com
impart
appellants,
facts,”
private
Billings
sure of
defined
interpretation
into
plexity
Atkinson,
(Tex.1973),
v.
tive
an invasion
is
to reach the same
un-
result
warranted,”
see, Department of the Air Force
would have been
obtained without use
16,
Rose,
v.
favor disclosure
practical
statutory
effect of a
directive
view,
my
In
respectfully
dissent.
an act
that close
liberal construction of
to subsection
majority
assigned
have
to be resolved in favor
Act1 a
judgment
Open
meaning
calls are
Records
of the Texas
which is
fоr the reasons
erroneous
purpose
legislation.
the stated
follow:
not re-
present appeal,
quired
a “close”
to make
call. Neverthe-
majority gives
subsection
less,
construction of
Rec-
Open
a liberal
3(a)(2) a
which renders the subsec
meaning
superfluous,
meaning
therefore
ords
of in-
compel
Act seems to
less,
whatever
is excluded
because
formation,
might
even when disclosure
3(a)(2),
subsection
compulsory
cause inconvenience or
embarrassment
pre-emptively
majority,
in the view the
It is of some
persons.9
importance
some
of subsection
operation
excluded
this connection to observe that both the
is therefore
3(a)(1).
interpretation
This
dissenting justices
majority and
in Industri-
construction
contrary
rule of
al
Rec-
recognized
Open
Foundation
a whole and
read as
statutes
should
preference
ords
strong legislative
Act a
meaning
purpose
give
construed to
v.
confidentiality.
disclosure over
Hutchins
Pruitt, 551
every part.
parte
Ex
Comm’n,
Texas Rehabilitation
address because unjust oppressive, quences which are proper to strike the balance. amend the Act interpretation re majority’s because the the district court is af- judgment disclose informa quires agencies that State firmed. though such disclo tion to the even clearly unwarranted sures will constitute Justice, PHILLIPS, concurring. by placing in a personal Chief invasions of in light to whom the false the individuals holding Judge I concur with Shannon’s James, Co. Ins. v. formation refers. Gulf names involved should be disclosed (Tex. 143 Tex. 185 S.W.2d Act refusal and his under the 1945). has constitu the State Because How- in this case. balancing test use a the further dis controlling tional means point out that ever, careful I would be information, so as tribution or use of law tort we limited to a common are not initial release injury, the State’s prevent but that only decision recognized by constitutes of the information *7 of the of invasions 3(a)2, includes the tort. Industrial itself an of element i.e., 3(a)l, in “information set out v. Texas Industrial Foundation of the South law, by either constitu- deemed confidential (Tex. Board, 684 540 S.W.2d Accident tional, judicial statutory or decision.” require disclo 1976). interpreted As so 6252-17a art. that will under Tex.Rev.Civil Stat.Ann. sure of information plac- have the effect of undisputed evidence (Supp.1982). compensation discussed, worker’s appellants in release names of believe disclosure of 9. As retaliatory discharge might cause in case would embarrassment claimants result quali- applicants discourage some job and the claimants. some discrimination applying positions persons harm, Supreme similar fied Despite possible this true, Assuming in this the future. required to be disclosed. the records certainly more sub- harm disclosure is potential harm of disclosure stantial than the (Sup. 6252-17a art. 1. Tex.Rev.Civ.Stat.Ann. Foundation, respon- alleged where in Industrial 1982), “Act.” hereinafter very possibility that real dents asserted
553 ing light, nation, certain individuals in a false out soliciting, as a means of violation of their the Act behalf of chairman privacy, of the Board of becomes unconstitutional in that it discrimi- vacant Regents, nominations for the office nates against such individuals and denies of University President. The letters con- them process substantive due of law. tained assurances the nominations would be held in confidence. The numerous 3. The majority interpretation destroys, students, addressees included former trus- view, in my Legis distinctions that the University’s development tees of the foun- lature intended to make the coverage dation, the members of the Nаtional Acade- and effect two subsections the National Science, members my (2), and in violation of duty this Court’s executive the chief Academy Engineering, give effect to intention the Legisla “Fortune 500” companies, of the officers ture. Knight v. International Harvester chancellors of presidents approximately and Credit Corp., (Tex. 1,500 universities, members of colleges and 1982). The balance of dissenting opin ambassadors organizations, ion illustrates substance the forego States, of the diplomatic service United ing assertions. “military members of the United States The district court order directs that a establishment,” organization officers in an writ of issue inspection mandamus “to allow A of Texas & M stu- composed of mothers and copying [appellants’] of documents in letters, dents, reply In to these and others. possession or under their control [which approxi- staff received the names the names contain] mately 560 individuals whom the addressees the position candidates for of President of presidency recommended Uni- ” Texas A University.... & M In appel- addition, versity. approximately 25 indi- order, lants’ appeal from that raise viduals their submitted own names nomi- error, three points of all to the effect that position. nation for duplicаte When the district court erred in its order because eliminated, nominations were there re- the information appellee demanded by mained 400 individuals to be considered for excepted from compulsory disclosure under These 400 presidency. individuals were subsection 3(a)(2) of the Act. Subsection primarily employees other universities excludes following information and colleges; they ordinarily occupied high from the general requirement that public office or positions employment their information be disclosed on request: “pleasure” governing served at the files, information in the disclo- institutions, bodies of their did sure of which would a clearly constitute employment, not have an assured term of priva- unwarranted invasion of personal contract, statute, whether reason of cy. regulation. biographi- staff compiled The below, In the trial following evidence nominees, using cal on the 400 was uncontroverted therefore be published information obtained from both viewed as established undisputed: employment sources firm that private and a Board Regents A Texas & M specializes high academic administrative University System appointed 22 individuals individuals, among the positions. From to serve as members advisory "search for cоnsid- the staff selected individuals committee.” The charged committee were advisory eration the search committee. generally selecting to assist the turn, Board committee, in 35 individ- selected person vacancy to fill a in the office of Board of Re- uals consideration *8 President University, of Texas A & M and described gents. Throughout process the connection, above, in that the were committee as- the con- none of 400 individuals paid sisted aby University staff the and were of their sidered the staff informed nomination; and the were provided University facilities none aware presumably, for the expenditure they The staff that were consideration money. 5,000 6,000 however, trial, mailed to about through- some letters At the time of office. well-qualified of the 35 to the who currently individuals recommended individuals are in serving high positions administrative at of Regents Board had been contacted about other will them- institutions withdraw inter- presidency and seven had been if from consideration it be disclosed selves in regard. viewed that are they that under consideration for other Opinion was at trial to evidence received our employment, importantly, but most procedure effect that described they them- purposes, whether withdraw above is institu- typical of that followed not, undisputed selves or under the evidence learning purpose tions of higher injured offices, they will be in their selecting officials and high administrative or occupations, employment, professions, is an es- confidentiality effect that owing to certain relational inherent factors aspect proce- customary sential and therein, by mere disclosure of the fact confi- According testimony, dure. to such they for the va- that had been considered dentiality generally and was required, is and not been cant office of President had case, position.2 because indispensable in offered testi- concerned the individu- 2. The Education about State’s Commissioner of part al, Higher fied as follows: Educa- but as the Commissioner quality higher violets, College shrinking I’m presidents tion concerned are not higher quality leadership they very you going education and but If are are sensitive. very top to hire the im- a level for a univer- education. I’m concerned about administrator sity, you going process pact are to steal him from have to of selection. this on unemployed Now, col- somewhere. You don’t find lege presidents. you keep pulling up to can’t a carrot going You have to are to part growing, how and the difficul- see ty it’s institution, stеal him from another a releasing press constantly and to government from, agency perhaps or even press, carrying it selection out before the institution, military, depending on process, you damaging selec- I think are that con- means that this has his individual result, process. And as a if this were stituency, governing group has a and a board process procedure you damage .. would . working that he is for. And if he becomes a would in that candidates eliminate them- candidate, job, an active candidate for a being in Texas. selves from Many considered gets employers this constituency, to or word back his his say people just going if to this is job in his his effectiveness is arena, open my played if name is be out in an going eroded, deeply to be morale of his this, going going to be if I’m made going damaged, staff is his effective- my present governing explain to have So, job damaged. ness will be most of his if of the United States board the President they people these will not even consent —if member he’s a cabinet level or subcabinet top apply people, are will consent to level not member, going explain he’s level Have job. They prefer for a will to be nominated. candidate, going simply he’s that he’s a Now, permits this the reasоn for is that this “No, say, simply be- can’t considered I asked, them when are then if their name my I effective in cur- cause have to remain get leaked, you does applied is it fact —or have rent situation.” job you for a certain are a candi- responded another as follows And witness “No, job, say date for a certain he can I’m private interest when asked how an individual’s not a I nominat- candidate. have been adversely by of confi- would be a lack affected ed, my knowledge but to I’m not at this time dentiality process: in the selection a candidate.” simple I fact what Because of the that —of important is This for these individuals just addressing, any col- that the—that way able to this to remain react in order great many publics, lege a a President serves governing If effective with their board. many great publics to- he mold which must person governing that is aware he—if his gether consulted [sic] a collaborative job, applied board that he is aware has move for- fashion to that institution make then wants to ask themselves and his board any indi- ward. it is known that And when him, you unhappy? “Why ask are What is being position, is vidual involved for another problem here?” institution, it cannot considered another If as one of the he doesn’t make the final cut any way that at his effectiveness candidates, course, begin but erode final will likely very ask, know, his own institution he you [sic] is matter with our “What building spent years a solid base. final He can’t even cut President? make So, involved. factor University.” something There another at XYZ it’s very That open. something it is critical factor.... you think It’s conduct applicant about, person very if a is an unsuccessful ... sensitive the individual public, does course, you my and he has before been I know concern —of *9 personal The issue before us is of privacy, apply prohib- whether district equally applied court properly the Act the undis- it compulsory disclosure of infor- the same puted facts recited above. per- mation when pertains prospective sonnel. Although the decision to issue a writ of ordinarily equitable
mandamus is within the required We are therefore to consider court, discretion a where writ is whether the disclosure of the information sought compel an to disclose in- agency case involved in this would constitute a Act, formation under the “clearly personal unwarranted invasion of court is “free equitable not to exercise dis- privacy.” denying cretion writ where the exer- The issue on the parties join primarily cise of such discretion would contravenе the applicability principles holdings overall scheme of the Act.... [T]he by Supreme stated Texas in Court of court’s public’s right task is enforce the Foundation, supra. Although Industrial of access given by the Industrial Act.” Supreme specifically decision the Foundation, supra, excep- considered another of the seventeen (Tex.1976). That trial must Act, tions in the namely contained issue a writ mandamus disclosure if provided by 3(a)(1), opin- the decision and § required by the Act. strong ion furnish analogy a in the The requires Act of all public disclosure case, for involve principle both cases upon request, unless infor- privacy, individual made ex- principle mation falls within one more of applicable to the case pressly seventeen exceptions listed Act. 3(a)(2) terms of and made applicable While the expressly Act a liberal requires through Industrial Foundation the medium interpretation disclosure, in favor of in view the three sources of law which § salutary and purposes declarations incorporates by reference to an establish expressly forth in set section one exception Act’s general requirement the requirement of a interpretation liberal of mandatory disclosure: constitutional may not be allowed to scope diminish the law, law, statutory decisions at and effectiveness of any one the seven- common parties law. And because the ad- State, teen exceptions. people decidedly interpretations vance different through same voice authorized which Foundation, opinion in Industrial we general mandated a of public disclosure in- explicit not of that analysis avoid an formation as matter public right, also opinion, now which I offer. expressly renounced any right informa- excepted tion which falls within catego- Foundation Industrial of the South ries. Board, the Texas Industrial sued Accident among defendants, seeking compel other ease, the present appellants resisted them to disclose information which names and possessed respecting Board individuals who above, the 400 individuals described as- personal-injury had made under the claims serting “personnel exception files” con- Law, Compensation Texas Worker’s Tex. Appellee tained in of the Act. (1967 seq. art. 8306 Rev.Civ.Stat.Ann. et does challenge appellant’s assertion that act Supp.1982), an administered “in personnel Resisting Board. disclosure of the informa- 3(a)(2), files” meaning within the and I tion, hold, the Board asserted that the informa- would so as the does. majority This mandatory disclo- exception have excluded been so limited for a reasons, 3(a)(1), excepted reason number of but I sure of § think reasons “information confi- justify exception in favor of cur- from disclosure deemed Constitutional, law, rent statu- or former dential either constitute Board clearly tory, by judicial unwarranted invasion decision.” The
great damage to that
on his
He
in a
situation.
really
individual
home
no-win
campus.
*10
law,
contended
that
information
tory”
pages
the
matter discussed at
676-
the
in Industrial
opinion
77 of
Court’s
Foun-
grounds
“deemed confidential”
all three
by
dation, but
the
discussion
Court’s
of the
constitutional,
statutory,
judi-
of
law —
rights
constitutional
and common law
of
appeal,
Supreme
cial decision. On
the
privacy
do concern us in the
case.
grounds.
Court discussed each of the three
ourselves,
case,
not concern
in this
We need
precepts
which Industrial Foundation
with the
the informa-
question
whether
the
draws from
Act
be summarized as
tion was “deemed
...
statu-
confidential
follows:3
opinion
“legitimate public
3. The
in Industrial Foundation
of a lack of a
inter-
Court’s
element
respects
necessary part
par-
has been criticized in several
men-
which
est”
forms a
Note,
tioned in a law review
privacy
note.
The Relеase
ticular
tort. The reference was re-
if,
of Private Information Under
quired
to
of the court in order
determine
Laws,
55 Tex.L.Rev. 911
These criti-
decisions,”
“judicial
publici-
applicable
cisms concern matters
the
also raised
briefs
ty of the
would constitute a
information
tort—
parties
of the
in the
case relative to the
so,
exception
if
then the
set forth in subsection
proper interpretation
opinion.
of the
otherwise,
3(a)(1)
apply,
exception
would
the
note,
apply
In the view the author
the
the Court
information
would not
and the
would
“adequately
public
to
interest”
failed
define the
have to be disclosed.
highly private
requesting
infor-
which the one
sight
the
of this
And because
author lost
funda-
prove in
mation must
order “to override the
aspect
opinion,
his criti-
mental
the Court’s
3(a)(1) exception.” Id. at 917. More-
Section
example,
the
are
For
cisms
invalid.
Court
over,
emphatically
could not more
have stated that
balancing
[by
adopted
test
the
If the
Court]
disclo-
Act makes
that the motives of the
“the
clear
public
in
the overall
interest
measures
requestor are not relevant
to the
individual
sure,
possible
a court must
all the
evaluate
the
re-
determination
whether
information
”
effects of disclosure аnd decide whether their
‘public
quested is
at
information.’
public
outweigh
import to
sum is of sufficient
(emphasis added). The author’s reference
If, however,
the
claim.
the standard
“balancing
which the court ordered
to the
test”
requires
particular requester’s
that a
interest
employ
court to
also reflects that the
the trial
general pub-
coincide with the interest of the
lic,
meaning.
author misunderstood
Court’s
inquiry
justify
a court could
a limited
into
“test” to be a
The author considers that
requester’s intent
whether his
to discover
interests,
“weighing”
antagonistic
interest in the
accords with that
is,
confidentiality
interest
individual’s
merely private.
public
of the
or is instead
disclosure,
public’s
against
interest
forego-
at 917-18. The
Id.
last sentence
whereby
or
must rule for
quotation
ing
refers
author’s asserted
predomi-
according to which interest
disclosure
5(b)
provisions of §
contradiction between the
say,
excep-
importance,
which is to
nates
Act, (which prohibits a custodian of
3(a)(1) applies
it
does
accord-
tion in
any
inquiring
public records from
apart from the
into
matters
outweighs
ing whether one interest
the oth-
identity
person requesting
Instead,
er,
slightly.
the Court holds
however
identity
the records and the
of the records he
all,
designat-
no
of the kind
that there is
tort at
seeks)
that:
аnd the Court’s statement
compensate
injury
right
to one’s
ed to
for an
requestor,
particular interest of the
[T]he
public
embarrassing
free from
disclosure of
purposes
informa-
he seeks the
facts,
public
private
legitimate
if
interest
tion,
determining
are not to be considered in
“judicial
applicable
And
exists.
because
legitimate
requested
whether the matter
would not consider
decisions” at common law
public, except
insofar as the
concern to
any legitimate
had
a tort
that
public
there
been
requestor’s
interest in
exists,
“judicial
deci-
interest
then
large.
as that of the
same
prevent
applicable
sion” would
added).
(emphasis
The au-
at 685
540 S.W.2d
provided
3(a)(1).
exception
in §
because of
complaints
certain
colorable
thor’s
made
526D,
(Second) §
See Restatement of Torts
opinion, including
phrases used in the Court’s
author misinter-
comment. And because the
the statement
Court,
prets
he is
the “test” referred to
recognized
Legislature
has also
...
contention that the
that,
instances,
led into further error
his
in some
Section
“adequately
define
did not
confidentiality may
Court
interest
individual’s
outweigh
applying the
he
“test”
interest” relevant
public’s
in disclosure.
however,
necessary
believe,
It was not
added).
attributed to the Court.
Id., (emphasis
“public
expressly
define the
part
sight
thrust of
the author loses
referred,
by initially
it
opinion,
interest”
reference
which is a
of the Court’s
wrote,
classifying
an
privacy,
the tort of which
concerning
law
invasions
the tort
personal
free from
publication
highly
of one’s
specifically
invasion
facts,
private
embarrassing
embarrassing
plaintiff,
facts
about
disclosure,
Constitutional
law
external
interest in
creating
thus
a com-
source
of law which
incorporates
mon-law
doctrine which
ex-
into the
with the result that
informa-
cept
the information involved by
*11
tion protected
public
disclosure under
thereby allowing courts in their
decision—
the Constitutions of the
State
Texas or
deny
though
“discretion to
disclosure even
the United
States
excluded from the
there
specific exception provided”
is no
Act;
mandatory
provisions
the Act which would exclude from manda-
however,
exclusion
provided
tory
particular
sought
records
3(a)(1) of the Act is
§
coextensive with the
government body
from a
the case
then
constitutional
right
upon
relied
for confi-
(emphasis
before
court.
Id. at 681-82
dentiality,
in the case of the constitu-
added).
portion
opin-
In this
of the court’s
right
tional
of privacy,
right
present-
that
ion,
rejected
it
the Board’s contention that
ly limited under the
judicial
relevant
deci-
“judicial
the words
decision” referred to
sions to matters “relating to marriage, pro-
decisions in which the court
except
would
creation,
contraception,
family relation-
information from disclosure as it saw fit
ships,
rearing
or child
and education.” Be-
application
balancing
test. The court
cause the
the Foun-
Act,
noted that the Freedom of Information
dation did
information,
not include such
nor
552(b)(6) (1976
Supp.1981),
U.S.C.A.
§
which,
disclosed,
if
would im-
which excludes from mandatory disclosure
pinge upon a claimant’s constitutional right
“personnel and medical files and similar
association,
to freedom of
the Court held
files the disclosure of which would consti-
the requested information “is not ex-
clearly
per-
tute a
unwarranted invasion of
cepted by
3(a)(1) as information deemed
§
”,
privacy;
require
sonal
...
does
such a
confidential by constitutional
law.”
basis,
balancing test on a case-by-case
S.W.2d at 681. Similarly, the information
whereby
in eases
appellees
involving
right
seek to
have disclosed in
this case does not fall
of these cate-
“the individual’s
[is
gories;
thus there is
basis for holding
no
the preservation of the
balanced]
this information to be excepted from com-
purpose
bаsic
of the Freedom of Informa
pulsory disclosure
3(a)(2) by
under
refer-
§
open agency
light
tion Act ‘to
action to the
ence to constitutional law delineating
as
...,”
public
De
scrutiny’
citing
Rose v.
law of privacy.
Force,
the Air
partment of
425 U.S.
(1976).
reality, only “general “private facts” cause of action that the of a interest” “newsworthi- ness,” being plaintiff prove misleading: the latter that the facts disclosed are not somewhat privilege” general The The “newsworthiness as it has relevant to a matter of interest. called, provides provide protection purpose prevent been broad of the tort is publication might appear compensation publication unwarranted what otherwise words, embarrassing private embarrassing But In other matters. information. interest, “newsworthy” legitimate public term is a misnomer. Protec- information of purposes “news”; tort, legally “private.” publication tion is not limited to is not Problems, Sack, Libel, Slander, anything it is afforded for dissemination of and Related R. legitimate within the outer boundaries of 409-10 personnel-file ters of privacy. highly intimate or embarrassing contain implied thus in the strongest claimants, terms that the about some “such that its facts balancing test to which it referred would be publication highly objectionable would be applicable 3(a)(2), but not applica- sensibilities,” the case person ordinary ble outside that subsection. 540 S.W.2d at to the trial would remanded 681. a case-by-case determine on basis which information; and with files contained such “judicial term decisions” refers to them, respect presumed law, decisions at common a source interest in the legitimate had of law external to the Texas can information “unless [Foundation] Act which incorporates into the *12 that, particular show under the circum- Act, with the result that pro- information case, public has a legiti- stances of the the tected public from disclosure such mate in information notwith- interest the decisions is mandatory excluded from the standing private its Id. at 685. nature.” Act; however, provisions disclosure “publicity” With to element reference the the provided by exclusion the of § tort, merely the that of that court observed judicial Act is coextensive with the deci- for making public the information available judicial sions in the of upon, relied and case will establish that element be- inspection decisions acknowledge imple- the not constitutionally cause ment the State privacy by common law of in action, torts, suppress truthful information contained providing a tort “four distinct by prohibiting further subject rules,” publi- are records recog- each to different or Id. at 684. nized: cation distribution thereafter. upon 1. plaintiff’s Intrusion the seclu- do foregoing principles, How then the solitude, private sion or his into Foundation, taken from Industrial bear affairs. the upon present case? 2. embarrassing pri- Public disclosure of apparent any is readily It reference plaintiff. the vate facts about as a of law “judicial to decisions” source the Publicity places plaintiff 3. the personal distinctly must be dif- privacy light eye. false in the to 3(a)(1), compared such ferent under § 3(a)(2). it made Appropriation, for the defendant’s a reference when under §
advantage,
plaintiff’s
name or
the
is made under the for-
When
reference
subsection,
explicit incorpora-
likeness.
mer
and its
common law
“judicial
tion of
decision” at
added), referring
681 (emphasis
excluding
statutory ground
as a
for
infor-
recited in William L.
categorization
disclosure, the
mandatory
pur-
mation from
Prosser,
383, 389
Privacy, 48 Cal.L.Rev.
to
the rules
pose of the reference is
discover
the
by
The interest asserted
Board
decisions; and, having
laid down in such
as a basis for nondisclosure under §
rules, they may then be
ascertained such
closely
“most
the
of the Act
resemble[d]
the
applied to determine whether or not
freedom from
interest defined
Prosser as
“deemed confidential”
embarrassing private
public disclosure of
(See
Act.
Industrial
purposes
the
the
aрplicable to
facts.”
Id. Under the rules
682-85,
Foundation, at
wherein the Court
provided to
the tort action
vindicate
Billings
v.
refers
decision
interest,
is no tort
all
particular
there
Atkinson,
and, having made the ref-
supra;
(1)
given
to matters con-
publicity
unless
erence,
determined that
rele-
the Court
life,
private
(2) cerning
plaintiff's
precisely
yet
rules have not been as
vant
be highly
of such matters would
publicity
to the one relevant
respect
formulated with
person
ordinary
offensive
a reasonable
tort shown
the evidence
sensibilities,
legitimate
there is no
(3)
embarrassing pri-
public disclosure
matter
Id.
publicized.
case—
vate facts about the
the ele-
plaintiff
in-
the evidence established
Since
—but
by'reference
did ments could be ascertained
sought by
Foundation
formation
Prosser,
117 at 809 of
Law of Torts
general purposes
of the Act
order
(1971). The Court
concluded that
whether,
case,
in a specific
determine
elements
tort would be established
personal privacy
princi-
or the
principle of
the information demanded
ple
governmental
of access to
freedom
the Foundation
under the
infor-
ac-
predominant,
and rule
excepted
mandatory
mation was
dis-
fact,
cordingly.
procedure,
This
closure
authority
3(a)(1).
Indus-
imрliedly approved by
682-83.)
S.W.2d at
Foundation,
trial
Against interests of the 400 information individuals, sought by appellee. When the the harm that will disclosing the documents suffer as a result of disclosure of the infor- light, viewed I would find the requested, mation attended the innuendo disclosure, privacy interests of the 400 individuals which will result from such one carry greater weight, must balance the for under the public’s interest in disclo- sure, undisputed evidence will sustain actual subsection 1 of the Act is harm, apparent highly from the stated in favor of and substantial of a kind of- policy making person, by available to to a reasonable “full and fensive complete regarding pub- the affairs compared of the documents as in-
lie’s and insubstantial speculative rather sug-
terest who was knowing initially
gested position. or considered for the
Accordingly, appellee I would hold that to disclosure of the names
only entitled of those of the 400 individuals
qualifications posi- applied writing
who for the vacant
tion, or who volunteered affirmatively themselves to be considered for
allowed to the names and
position, but not entitled I would
qualifications of the remainder. of the trial court and judgment
reverse the that court for a determi-
remand the case to
nation, basis, on a whether the case-by-case sought by appellee contains the individuals
names office of applied writing
who caused or allowed
president, or otherwise considered, and for
themselves appropriate compelling of an order
entry only. in those instances Harrison, McGowen, Roddy L.
Jack Louis Pecos, appellant. CHAVEZ, Appellant, Cruz Monahans, Wade, Atty., Dist. Mike v. appellee. Texas, Appellee. The STATE of C.J., PRESLAR, F. Before STEPHEN No. 08-82-00001-CR. SCHULTE, JJ. and WARD Texas, Appeals El Paso. OPINION 11, 1983. May WARD, Justice. 15, 1983. Denied June Rehearing State’s a conviction for appeal This is an jury punishment assessed
murder. We reverse. imprisonment. life evidence phase, punishment At the *16 introduced, objection, Appellant’s over murder in second-degree guilty plea prior guilty pled had Appellant California. of Mad- 1,1981, Superior April However, before County, California. era Texas. came to escaped and sentencing, he error con- ground of in his sole Appellant allowing erred in the trial court tends that guilty plea prior of his evidence