The Honorable Donnan H. Winfrey Opinion No. H-917
Director and Librarian
Texas State Library Re: Confidentiality of
Eiox 12927, Capitol Station non-current personnel
Austin, Texas 78711 files transferred to the
State Archives.
Dear Mr. Winfrey:
You have requested our opinion whether the Texas Open
Records Act, article 6252-17a, V.T.C.S., applies to records
that have been declared non-current by the originating
agency and subsequently transferred to the State Archives
for permanent preservation. Specifically, you inquire as
to the status of personnel records from the Austin State
Hopsital for the years 1942-1957, from the Texas Confederate
Home for Men for the years 1950-1957, and from the Texas
Confederate Woman's Rome relative to the years 1945-1959.
You also ask whether any such records excluded from disclosure
under the Open Records Act remain permanently confidential.
The transfer of personnel files or other records to
the State Archives does not affect the status of the
transferred documents~ under the Open Records Act. Information
which is excepted from disclosure under the Act can be
transferred between State agencies without violating its
confidentiality or destroying its confidential character.
Attorney General Opinion H-242 (1974). Likewise, public
information remains public when it is transferred from the
files of the originating State agency to the State Archives.
Thus, we believe the non-current personnel records about
which you inquire retain the same status under the Open
Records Act after they have been transferred to the State
Archives as they had when in the files of the originating
agency.
P. 3844
The Honorable Dorman H. Winfrey - page 2 (H-917)
Information in personnel files is public except insofar
as its disclosure "would constitute a clearly unwarranted
invasion of personal privacy." V.T.C.S. art. 6252-17a, §
3(a) (21. We have considered the scope of this exception on
numerous occasions. See Open Records Decision Nos. 133, 132,
123, 119 (19761, 117,111, 110, 106, 103, 102, 93, 91, 71,
68, 67, 55A (19751, 60, 55, 54, 41, 37, 34, 15, 14 (1974).
We have also applied the "personal privacy" exception of
section 3(a) (2) of the Act to the personnel files of former
as well as current employees. Open Records Decision Nos.
133, 119 (19761, 93, 71, 68 (1975).
We have not, however, previously considered the question
of when personnel records excepted from disclosure under
section 3(a)(2) lose their confidential nature and become
public. The right of privacy in Texas has been defined as:
[Tlhe right to be free from the unwarranted
appropriation or exploitation of one's
personality, the publicizing of one's private
affairs with which the public has no legitimate
concern, or the .wrongful intrusion into one's
private activities in such manner as to outrage
or cause mental suffering, shame or humiliation
to a person of ordinary sensibilities. Billings
v. Atkinson, 489 S.W.2d 858, 859 (Tex. Sup.
m731.
Although Billings recognizes the right of privacy for purposes
of tort law, both the Supreme Court of Texas and this office
have nonetheless applied its standards in considering the
scope of the right to privacy under the Open Records Act.
Industrial Foundation --
of the South v. Texas Industrial
Accident Board, 540 S.W.Zd 668 (TexTSup. 1976); Attorney
General Opinions H-483 (1974), H-258 (19741, H-90 (1973);
Open Records Decision Nos. 123 (1976), 68, 67 (1975), 19,
18A (19741, 2 (1973). We likewise believe that the loss of
the right to privacy under the Open Records Act may be
analogized to the lapse of that right under tort law.
We believe that those portions of a personnel file
excepted from disclosure because release would constitute a
"clearly unwarranted invasion of personal privacy" retain
their confidentiality, unless waived, so long as the subject
of the file remains alive. The right of privacy terminates,
however, upon the death of the individual, and release of
one's files after death violates no protected right of
that individual's privacy.
P. 3845
The Honorable Dorman H. Winfrey - page 3 (H-917)
The authorities appear to be uniform
that the right of privacy cannot be
asserted by anyone other than him
whose privacy is invaded.
Johnson Publishing Co., 325%% %9,
-1. Dist. Ct. App. 19581.
Accord, James v. Screen Gems, Inc. 344 P.2d 799, 801 (Cal.
Dist. Ct. App.79rT.general rule" is that "the right
(of privacy) lapses with the death of the person who enjoyed
it . . . .' Young v. That Was the Week that Was, 423 F.2d
265, 266 (6th Cir. m70)CCorderv. Detective Publications,
Inc., 419 F.2d 989, 990 (6th Cir. m69). This is so because:
It is anomalous to speak of the privacy
of a deceased person . . . . As
Shakespeare said, 'The evil that men do
lives after them . . . .' What a man
does while alive becomes a part of
history which survives his death.
Maritote v. Desilu Productions, Inc.,
345 F.2d n8, 420 (7th Cir. 1965).
See Annot., 18 A.L.R.3d 873 (1968).
-
Dean Prosser has described the right of privacy as
a personal one, which does not extend to
the members of . . . [one's] family,
unless, as is obviously possible, their
own privacy is invaded along with his. . . .
[Tlhere is no common law right of action for
a publication concerning one who is already
dead. Prosser, Privacy, 48 Calif. L. Rev.
383, 408 (1960).
The personal nature of one's right to privacy was recognized
by the courts soon after Samuel Warren and Louis Brandeis
introduced and defined the legal concept of a "right to
privacy" in their widely noted article on the subject.
Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev.
193 (1890). As early-% 1895 a New York court stated what
was to become the virtually uniform rule in American juris-
dictions:
P. 3846
The Honorable Dorman H. Winfrey - page 4 (H-917)
Whatever right of privacy . . .
[the decedent] had died with her.
~~"sl~:.v~p","r:Q~;,"' N.E. 22, 25
Although Texas courts have had no occasion to consider
the matter in connection with the right of privacy, a cause
of action for libel has been "restricted to the person who
has directly sustained the injury," and cannot be brought
by another on behalf of the dead, Renfro Dru co. v.
Lawson, 160 S.W.2d 246, 250 (Tex. S-4 Ti? %Z ZjZneral
rule that an action for invasion of orivacv does not survive
the death of the party ~whose privacy-was invaded is
"frequently analogized to defamation." Gruschus v. Curtis
Publishing z, 342 F.2d 775, 776 (10th Cir. 1965r We are,
therefore, of the opinion that Texas courts would follow the
almost uniform rule of other jurisdictions that the right of
privacy lapses upon death.
With the death of a former State employee, therefore,
no invasion of his privacy can occur, and his personnel file
is no longer excepted from public disclosure under section
3(a)(2) of the Open Records Act. A similar ,rule has been
applied to the exemption from disclosure of files "which
would constitute a clearly unwarranted invasion of personal
privacy" under the Federal Freedom of Information Act, 5
iJ.S.C.-§ 552(b) (6). Rabbitt v.
383 F. SUDS. 1065 (S.D.N.Y. lv4
possible that information in the-file of a deceased former
employee might invade the personal privacy of other living
persons, in which case that portion of the file would remain
confidential and excepted from disclosure under either
See Industrial Foundation of
section 3(a) (1) or 3(a) (2). _
the South v. Texas Industrial Accident Board, supra. IFa
review ae oersonnel file of a deceasedormer emolovee
reveals no such unwarranted invasion of the personal-privacy
of living individuals, however, the file is public and
subject to disclosure.
SUMMARY
Non-current personnel files transferred
to the State~Archives for permanent
preservation retain the same status as
they had before transfer under the Texas
Open Records Act, article 6252-17a, V.T.C.S.,
P- 3847
The Honorable Dorman H. Winfrey - page 5 (H-917)
and are public except insofar as disclosure
would constitute a clearly unwarranted
invasion of personal privacy. The right
of privacy is personal to the individual
and lapses upon his death, rendering his
personnel file public except insofar as
its disclosure would constitute a clearly
unwarranted invasion of the personal
privacy of living individuals.
Very truly yours,
APPROVED:
?leP.-+ht
DAVID M. &ENDALL, First Assis ant
(/&&$J
C. ROBERT HEATH, Chairman ~
Opinion Committee
jwb
P. 3848