Hubert v. Harte-Hanks Texas Newspapers, Inc. ( 1983 )

SHANNON, Justice.

Appellee Harte-Hanks Texas Newspapers, Inc., doing business in Bryan as the Bryan-College Station Eagle, filed suit in the district court of Travis County against appellants Dr. Frank Hubert, Chancellor of the Texas A & M University System, the Board of Regents of Texas A & M, the “Search Advisory Committee” of the Board of Regents, and twenty-eight persons who are members of the Board of Regents or the “Search Advisory Committee.” Appellee by its suit sought a writ of mandamus pursuant to § 8 of the Open Records Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17a (Supp. 1982)¹ compelling appellants to make available the names and qualifications of candidates for the office of president of Texas A & M. After a bench trial, the district court signed an order granting the writ which commanded appellants to release all of the candidates’ names and qualifications to ap-pellee. This Court will affirm the order of the district court.

In August 1980, the Texas A & M Board of Regents created a “Search Advisory Committee” to provide assistance in the search for candidates for the office of president of Texas A & M. The regents appointed Dr. Frank Hubert to be executive officer of the search committee. Also appointed to the committee were Texans active in education, business, and industry.. The committee sought nominations for the office of president, and, after evaluating the nominees, prepared a list of one hundred seventy-one names. The list was narrowed to thirty-five persons, whose names were recommended to the Board of Regents.

In January 1981, while the search was in process, appellee requested Dr. Hubert to furnish the names and qualifications of all of the presidential candidates considered by the Search Advisory Committee. Dr. Hubert did not produce the information, but on advice of counsel, prepared a request for an opinion of the attorney general as to whether the information was required to be disclosed under the Open Records Act. In June 1981, the attorney general ruled that the names and qualifications of candidates considered by the search committee must be disclosed, but that the committee’s final recommendations on candidates to the Board of Regents were intra-agency memo-randa excepted from the general disclosure requirement of the Open Records Act by § 3(a) of the Act. Tex. Att’y Gen. ORD-273 (1981). After the attorney general’s opinion was released, appellants continued to resist disclosure, resulting in appellee’s suit and the district court’s order. Appellants did not request nor did the district court file findings of fact and conclusions of law.²

Appellants attack the district court’s order by four points of error which present two issues: (1) whether appellants are prevented from defending the suit for mandamus because they failed to file a suit challenging the attorney general’s opinion within three days after they received it, and (2) whether the requested information is excepted from disclosure by § 3(a)(2) of the Open Records Act.

In support of the district court’s order, appellee argues that appellants are barred from asserting the § 3(a)(2) exception as a defense to the suit in mandamus because they failed to challenge the attorney general’s opinion within three days after its receipt. We do not agree with the argument. Appellee bases its contention on § 10 of the Act. Section 10(b) states that a custodian of public records commits a criminal offense if, acting with criminal negligence,³ he refuses to release public records to anyone requesting them under the provisions of the Act. The custodian may assert as an affirmative defense to criminal prosecution under this section that within three working days of receipt of an unfavorable attorney general’s opinion, he filed a cause of action seeking relief from compliance with the opinion. Section 10(c)(3). The Act provides for filing of such suit to protect a custodian of records from criminal liability. If the party seeking the records pursues his civil remedy, a suit for mandamus, the Act does not provide that the custodian may file a separate suit challenging the attorney general’s ruling. But the custodian’s inability to challenge the attorney general’s opinion except to preclude criminal liability does not mean the custodian will be prevented from asserting in the mandamus action that the records are excepted from disclosure. In the mandamus proceeding, the public official may re-assert any grounds upon which he deems the record to be excepted from the general disclosure requirement of the Act. If the district court agrees with the public official and concludes the requested information to be exempt from disclosure, mandamus will not lie. If, however, the district court determines the information must be disclosed,⁴ the official must release the information, subject to his right to appeal the order of the district court.

In the present appeal, appellants could not challenge the attorney general’s opinion in a separate lawsuit. After the attorney general ruled, appellants’ only course of action was to comply with the opinion or refuse to release the records and contest the mandamus proceeding brought by appellee.⁵ In the mandamus proceeding, however, appellants properly asserted their contention that the requested materials were excepted from disclosure under § 3(a)(2) of the Act. The district court disagreed with appellants’ contention and ordered appellants to comply with the attorney general’s opinion. On appeal to this Court, appellants properly assert as a point of error their contention that the district court erred in holding that § 3(a)(2) did not protect the names and qualifications of the candidates from disclosure.

Appellants claim they are not required to disclose the names and qualifications of the candidates the Search Advisory Committee considered because § 3(a)(2) of the Open Records Act excepts this information from disclosure. Section 3(a) provides in relevant part:

(a) All information collected, assembled, or maintained by governmental bodies pursuant to law or ordinance or in connection with the transaction of official business is public information and available to the public during normal business hours of any governmental body, with the following exceptions only:

(1) information deemed confidential by law, either Constitutional, statutory, or by judicial decision;

(2) information in personnel files, the disclosure of which would constitute clearly unwarranted invasion of personal privacy; provided, however, that all information in personnel files of an individual employee within a governmental body is to be made available to that individual employee or his designated representative as is public information under this Act....

Appellants insist subsection (a)(2), relating to information in personnel files, prohibits disclosure of the information sought by ap-pellee. Appellee concedes, for sake of argument, the material it seeks is information contained in a “personnel file,” but maintains the disclosure of that information does not constitute “a clearly unwarranted invasion of personal privacy.”

The dispute between the parties focuses on how “a clearly unwarranted invasion of personal privacy” should be determined. Appellants urge this Court to adopt a balancing test weighing a person’s right to privacy against the public’s interest in disclosure which is applied by the federal courts to cases decided under the Freedom of Information Act, 5 U.S.C. § 552 (1977 & Supp.1982).⁶ Appellee asserts, on the other hand, that this Court’s determination of whether disclosure would constitute an unwarranted invasion of privacy should be guided by the holding in Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex.1976). In Industrial Foundation, the Supreme Court interpreted what information is excepted from disclosure under § 8(a)(1) of the Act, which restricts availability of information “deemed confidential ... by judicial decision.” The petitioner in Industrial Foundation contended that information which formed the basis for an invasion of privacy tort under Texas law is the type of information which should be deemed confidential by the courts. Specifically, any information which, if publicized by a private person, would render that person liable for the tort of invasion of privacy, i.e., “public disclosure of private facts,” as defined in Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973), should be deemed confidential under § 3 (a)(1). The Supreme Court agreed with petitioner, holding that information (1) which contains highly intimate or embarrassing facts which, if publicized, would be highly objectionable to a reasonable person and (2) is not of legitimate concern to the public, is confidential and may not be disclosed. Industrial Foundation of the South v. Texas Industrial Accident Board, supra, at 685.

Appellants insist the legislature must have intended a different treatment for “information in personnel files” since that subject was treated separately in § 3(a)(2). Accordingly, appellants argue, this Court should not regard the test chosen by the Supreme Court in Industrial Foundation to apply to § 3(a)(1) as equally applicable to § 3(a)(2). The proper test, they claim, is one balancing a person’s right to privacy against the public’s interest in disclosure as applied by the federal courts in cases decided under the Freedom of Information Act.

Nothing in the language of § 3(a)(2) indicates that either the federal balancing test or the Industrial Foundation test should be employed in determining cases involving “information from personnel files.” Nevertheless, this Court has determined, finally, that the Industrial Foundation test for information deemed confidential by law under § 3(a)(1) of the Open Records Act should apply also to § 3(a)(2). Applying the Industrial Foundation analysis to § 3(a)(1), and adopting the federal balancing test for § 3(a)(2), as urged by appellants, would impart unnecessary complexity into judicial interpretation of the statute. The basic question in determining whether information should not be disclosed under §§ 3(a)(1) and 3(a)(2) is whether publication of the information would constitute an invasion of an individual’s privacy. As the Supreme Court held in Industrial Foundation, the proper way to evaluate a claimed invasion of privacy is to apply the state tort law dealing with that injury. If disclosure of the material would result in the privacy tort of “public disclosure of private facts,” then the material should remain confidential. Application of this test will result in the proper “balancing” of an individual’s right to privacy and the articulated purpose of the Open Records Act— that the people are entitled to full and complete information regarding the affairs of government and the acts of its officials. Open Records Act § l.⁷

In the present appeal, appellee newspaper sought the names of candidates for president of Texas A & M. Appellants refused to release the information, claiming disclosure would be a clearly unwarranted invasion of privacy. We do not regard the candidates’ names to be facts of a highly embarrassing or intimate nature, which, if publicized, would be highly objectionable to a reasonable person. Industrial Foundation of the South v. Texas Industrial Accident Board, supra. The information sought to be attained does not show how the candidate’s name was submitted to the Search Committee. Even so, many persons might well be honored that they were considered for the presidency of one of the state’s large universities. Certainly, those candidates who caused their names to be submitted to the search committee should not be heard to complain of disclosure. Although those candidates who did not cause their names to be placed with the search committee may be in a different position, still the information sought is plainly not of the intimate or embarrassing nature which the Supreme Court discussed in Industrial Foundation. The records sought in that case were claims injured workers filed with the Industrial Accident Board for worker’s compensation benefits. The sensitive information the Supreme Court detailed as being exempt from disclosure involved claims by victims of sexual assaults, victims of mental or physical abuse in the workplace, illegitimate children, psychiatric patients, persons who attempted suicide, or persons suffering injuries to sexual organs. Plainly, this character of intimate or embarrassing information can be distinguished from the material sought in the present appeal.

Furthermore, the public is legitimately concerned with the names and qualifications of candidates for the presidencies of state universities. Industrial Foundation of the South v. Texas Industrial Accident Board, supra. The taxpayers of this state finance one of the larger systems of higher education in the country. That highly qualified and conscientious administrators are selected and entrusted to conduct the affairs of these institutions is a matter of legitimate public interest, a fact which appellants seemingly ignore.

Even should we assume appellants could establish that release of the information would infringe on the candidates’ privacy, disclosure should still be permitted. As ap-pellees emphasize, the part of the Open Records Act in dispute excepts information in personnel files from disclosure only if a clearly unwarranted invasion of privacy would occur. Therefore, the statute places a further burden on litigants who successfully establish that publication of material would result in an invasion of privacy. Since we do not believe any invasion of privacy has occurred in the present case which would warrant nondisclosure, it is unnecessary to determine when such an invasion would be clearly unwarranted.⁸

Appellants introduced expert testimony that some qualified candidates for university administrative positions would be discouraged from applying for a position if they thought their names might be disclosed. While this factor might persuade the legislature to create an Open Records Act exception for such applicants, it is not evidence of “a clearly unwarranted invasion of personal privacy” under current Texas tort law or the Open Records Act. Furthermore, we presume any fact question as to the effect of disclosure was resolved by the district court against appellants, as they did not request and the district court did not file findings of fact and conclusions of law. E.g., Buchanan v. Byrd, 519 S.W.2d 841 (Tex.1975).

Finally, § 1 and § 14(d) of the Open Records Act command that the provisions of the Act are to be liberally construed to favor disclosure of public records. The practical effect of a statutory directive for liberal construction of an act is that close judgment calls are to be resolved in favor of the stated purpose of the legislation. In the present appeal, this Court is not required to make a “close” call. Nevertheless, a liberal construction of the Open Records Act seems to compel disclosure of information, even when disclosure might cause inconvenience or embarrassment for some persons.⁹ It is of some importance in this connection to observe that both the majority and dissenting justices in Industrial Foundation recognized in the Open Records Act a strong legislative preference for disclosure over confidentiality. Hutchins v. Texas Rehabilitation Comm’n, 544 S.W.2d 802 (Tex.Civ.App.1976, no writ).

If appellants are of the view that their privacy interests do not receive enough consideration under the present Act, they must address their concerns to the legislature to amend the Act to strike the proper balance.

The judgment of the district court is affirmed.

1 . The Open Records Act was enacted by the legislature in 1973. Section 1 of the Act, a declaration of policy, states:

Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the servant of the people, and not the master of them, it is hereby declared to be the public policy of the State of Texas that all persons are, unless otherwise expressly provided by law, at all times entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. To that end, the provisions of this Act shall be liberally construed with the view of carrying out the above declaration of public policy.

Section 3, the general disclosure provision of the Act, provides “[a]ll information collected, assembled, or maintained by governmental bodies pursuant to law or ordinance or in connection with the transaction of official business is public information and available to the public” Eighteen exceptions to this general requirement, including the exception disputed in this lawsuit, are then listed.

Sections 7 and 8 of the Act set forth the procedure to be followed when information is requested under the Act. A governmental body receiving a request for information which it believes section 3 excepts from disclosure may, within 10 days, request an attorney general’s opinion as to whether the information is public. If the attorney general deems the information to be public, the agency must make the information available to the person requesting it. If the agency refuses to comply with the attorney general’s ruling, the party seeking the information may bring suit for a writ of mandamus to compel disclosure.

2 . Appellee argues that because the district court filed no findings of fact and conclusions of law, this appeal should be determined upon the basis that the district court agreed with appellants and applied the test they urged, but still resolved the case against them. We decline to affirm the judgment upon that basis.

3 . For the statutory definition of “criminal negligence,” see Tex.Pen.Code Ann. § 6.03(d) (1974).

4 . In determining whether disclosure is required, the district court should give due consideration to the attorney general’s opinion. Opinions of the attorney general, while not binding on the courts, are persuasive. E.g., Jones v. Hutchinson County, 615 S.W.2d 927, 931 (Tex.Civ.App.1981, no writ).

5 . The Supreme Court has recognized that an agency may, in the mandamus proceeding, contest disclosure. Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 678 (Tex.1976). Appellees’ fear that our refusal to give binding effect to the attorney general’s opinion in the mandamus proceeding will render the procedure for procuring the opinion a futile exercise is unfounded. Most agencies requesting opinions abide by the attorney general’s ruling without resort to further legal proceedings. Comment, The Texas Open Records Act: A Section-by-Section Analysis, 14 Hous.L.Rev. 398, 430 (1977).

6 . The relevant exception under the federal Freedom of Information Act is 5 U.S.C. § 552(b)(6) (1977), which provides “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” is exempt from disclosure. The federal courts balance the public’s interest in obtaining the information with the individual’s right to privacy. See, e.g., Department of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); Campbell v. United States Civil Service Commission, 539 F.2d 58 (10th Cir.1976).

Appellants also cite several federal cases discussing the privacy rights of labor union members. Because of the sensitive nature of the employer-union relationship and the special consideration it receives under federal law as evidenced by the National Labor Relations Act, we regard these cases as inapplicable to the present appeal.

Furthermore, it is not at all clear that if this Court were to apply the federal “balancing” test, appellants would prevail. The information excepted from disclosure under the federal act must be of a “highly intimate nature.” Information concerning business or professional relations is not of this type. See, Sims v. CIA, 642 F.2d 562 (D.C.Cir.1980); Board of Trade v. Commodity Futures Trading Commission, 627 F.2d 392 (D.C.Cir.1980).

7 . Not only does this test reach the proper legal result, but is also relatively easy to apply. “Balancing” tests such as the one appellants propose are frequently of little analytical value. No method exists to determine the “weight” given the factors to be balanced. Thus the court, without an objective measure to weigh competing interests, must substitute its subjective judgment to reach the same result which would have been obtained without use of the balancing test.

8 . For discussion of the additional burden of proving an invasion of privacy is “clearly unwarranted,” see, Department of the Air Force v. Rose, 425 U.S. at 378 n. 16, 96 S.Ct. at 1607 n. 16.

9 . As discussed, appellants believe disclosure in the present case would cause embarrassment for some applicants and discourage some qualified persons from applying for similar positions in the future. Assuming this to be true, the harm from disclosure is certainly no more substantial than the potential harm of disclosure alleged in Industrial Foundation, where respondents asserted the very real possibility that release of names of worker’s compensation claimants might result in retaliatory discharge or job discrimination against the claimants. Despite this possible harm, the Supreme Court required the records to be disclosed.