Untitled Texas Attorney General Opinion ( 1974 )

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.
p. 1203
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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
p. 1209