Open Records Decision No. 223
May 22, 1979

	Re:  Whether names of applicants for position of school superintendent are public 
under Open Records Act.

Mr. V. A. Robertson, Jr.
President
Board of Trustees
Round Rock Independent School District
Round Rock, Texas

Dear Mr. Robertson:

	You request our decision pursuant to section 7 of article 6252-17a, V.T.C.S., the 
Texas Open Records Act.  You have received a request for a list of the names of all 
persons who have applied, or are being considered, for the position of superintendent of 
schools of your district.  The information involved is a list of 46 names of individuals 
who have expressed interest in the position of superintendent of schools.  The district 
explains that the inquiries were received with assurances that the information would be 
held in confidence.

	You contend that this information is excepted from required public disclosure 
under section 3(a)(1) or 3(a)(2) because publication would be an unwarranted invasion of 
the privacy of the applicants.  Section 3(a)(2) protects “information in personnel files, the 
disclosure of which would constitute a clearly unwarranted invasion of personal 
privacy.”  We believe that information concerning an identifiable individual's application 
for employment meets the first requirement of this exception as being “information in 
personnel files.”  See Open Records Decision No. 110 (1975).

	The application of section 3(a)(2) depends on two additional factors -- an 
invasion of personal privacy and a finding that the invasion is unwarranted.  In a case in 
Florida a similar privacy claim was recently made.  There a citizen sought information 
compiled by a consultant firm hired to conduct a search for potential applicants for a high 
managerial position of a public utility firm.  In determining whether the names of 
prospects were public the court said

even the facially least sensitive information recorded, which 
seemingly does no more than identify the prospects, receives greater 
import from the context:  these persons were not identified for a 
statistical abstract or for other purposes insignificant to their privacy 
interests; they were identified as having interviewed the consultant 
at some length concerning a new job.  The prospects believed that 
public revelation of that information would result in ‘dire 
consequences’ to their professional lives.  The consultant's 
testimony in the case attests that such concerns are genuine and 
widespread, though we may doubt that they are universal.  The trial 
judge found that ‘significant damage may result’ from public 
disclosure of the prospects’ identities.

	A substantial showing is thus made that public revelation of the 
prospects’ identities, addresses, and basic family and vocational 
associations would be offensive to persons of ordinary sensibilities.

Byron, Harless, Schaffer, Reid and Associates v. State ex rel. Schellenberg, 360 So.2d 
83, 96 (Fla. App. 1978).

	Under the reasoning of the Florida court we believe that the information 
requested here can meet the first half of the section 3(a)(2) test as constituting an 
invasion of personal privacy.  The second half of the test -- determining whether the 
invasion of privacy caused by release of the information would be “clearly unwarranted” 
-- requires a balancing test.  Industrial Foundation of the South v. Texas Industrial 
Accident Board, 540 S.W.2d 668, 681-682 (Tex. 1976).

	The first factor to be placed in the balance is the public's strong interest in having 
an opportunity to inform itself on the affairs of government.  See, e.g., Texas Open 
Records Act, V.T.C.S. art. 6252-17a, §1.  This factor is entitled to even greater weight in 
consideration of the particular importance of the position of school superintendent.

	The other side of the balance would include the public's interest in insuring that 
qualified individuals are encouraged to apply.  It has been suggested that persons 
employed by other school districts would sometimes decide not to apply since their 
present position might be adversely affected if they publicly seek another position.  Of 
course, this factor would not generally apply if the applicant is currently employed by the 
same district.

	Finally, we believe it is relevant to note that the position sought in this case is an 
employment rather than a public office.  Although the position is certainly an important 
one, it does not involve the exercise of the sovereign function of the government largely 
independent of the control of others.  See Aldine Ind. Sch. Dist. v. Standley, 280 S.W.2d 
578, 583 (Tex. 1955); compare Open Records Decision Nos. 212 and 188 (1978).  The 
law has made a traditional distinction between officers and employees, and we believe 
that the fact that a person has applied for appointment to an office weighs more heavily 
in the balance toward requiring disclosure than is the case where, as here, the individual 
is seeking an employment.

	The balance is delicate, but in this case we believe it will tend to fall to the side of 
the applicant for employment.  Where an individual seeks public employment rather than 
public office, where he has a legitimate and reasonable expectation that the fact of the 
application will be retained in confidence, and where he reasonably believes that his 
current employment would be adversely affected if it is disclosed that he has applied for 
a different job, we believe that disclosure of his name as an applicant would ordinarily 
constitute a clearly unwarranted invasion of personal privacy within the contemplation of 
section 3(a)(2).

	The district should measure the name of each individual against these criteria to 
determine if disclosure of his name would come within this test.  The key question will 
be whether the individual reasonably believes that his current employment would be 
adversely affected if it were known that he was seeking another job.  As we have 
indicated, we do not believe that current employees of the district can make such a 
showing absent special circumstances.

	It is our decision that the names of applicants for the position of school 
superintendent in this case are not required to be revealed where the applicant is able to 
demonstrate that release of his name is likely to have an adverse effect on his current 
employment.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Ted L. Hartley
Executive Assistant Attorney General

Prepared by C. Robert Heath
and William G Reid
Assistant Attorneys General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Rick Gilpin
William G Reid