Open Records Decision No. 241
April 22, 1980

	Re:  Whether information gathered by the Governor regarding potential nominees 
for public office is subject to the Open Records Act.

Honorable William P. Clements, Jr.
Governor of Texas
State Capitol
Austin, Texas 78711

Dear Governor Clements:

	You request the decision of this office pursuant to section 7 of article 6252-17a, 
V.T.C.S., the Texas Open Records Act.  You have received two requests for information 
concerning recommendations for appointment to office.  One request asks for “copies of 
all correspondence, telegrams, telephone memorandum, etc., that pertains to 
recommendations to fill expected vacancies on the Supreme Court of Texas.”  The other 
request seeks “memos of telephone calls in which persons were recommended for the 
upcoming vacancy [on the Public Utilities Commission] as well as any other records of 
communications with regard to prospective nominees.”

	You contend that the information requested is excepted from required public 
disclosure under sections 3(a)(1) or 3(a)(9) of the Act which except:

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

	. . . .

	(9)	private correspondence and communications of an elected 
office holder relating to matters the disclosure of which would 
constitute an invasion of privacy.

	This office considered the issues posed by you in Open Records Decision No. 212 
(1978), and concluded that the fact that the governor has received letters making 
recommendations for appointment is not per se excepted from required public disclosure 
under either of the exceptions cited by you.  That decision reviewed the cases concerning 
the constitutional right of privacy and said:

	Thus, we conclude that no constitutional right of privacy has 
been recognized which would prohibit disclosure of the fact that a 
person recommended another or himself to the governor for 
appointment.

	That decision went on to consider the standards for determining whether a 
common-law right of privacy exists in information, as set out by the Texas Supreme 
Court in Industrial Foundation of the South v. Texas Industrial Accident Board, 540 
S.W.2d 668 (Tex. 1976).  This office concluded:

We do not believe the fact that a person has recommended another 
or himself for appointment by the governor meets the test of 
disclosing 'highly intimate or embarrassing facts the publication of 
which would be highly objectionable to a reasonable person.'  The 
content of a particular letter might disclose highly intimate or 
embarrassing facts, but we do not think that the fact of a favorable 
recommendation can be considered per se an invasion of the privacy 
of either the person recommended or the person making the 
recommendation.

Open Records Decision No. 212, at 4 (1978).  At least insofar as the person making the 
recommendation is concerned, the chance that an invasion of privacy might exist is 
substantially diminished, since no recommendation submitted after the issuance of Open 
Records Decision No. 212 (1978) could have been made in the expectation that it would 
be private.

	The second part of the test for determining whether information is protected by 
the common-law tort right of privacy is that the information is not of legitimate concern 
to the public.  Your position in asserting the applicability of the exceptions contained in 
sections 3(a)(1) and 3(a)(9) appears to be that the public has no legitimate concern with 
the appointment process until a nomination is made and submitted to the Senate for 
confirmation.  You contend:

Until a final selection of a nominee has been made by the Governor 
and the name of the appointee is subject to Senate action, no 
element of public information is involved.

	We cannot agree with the position that the public has no legitimate interest in 
knowing who has been recommended by whom for appointment to state offices prior to 
the time a decision is made by the governor.  In Open Records Decision No. 188 (1978), 
this office said in reference to persons under consideration for appointment as municipal 
judge:

	We believe the qualifications of appointed judges are an 
appropriate topic for public debate.  Accordingly we do not believe 
that disclosure of the document revealing the names of individuals 
who are seeking appointment to judicial positions can be said to 
constitute a clearly unwarranted invasion of personal privacy.

	The legislature has met in regular session since Open Records Decision Nos. 212 
(1978) and 188 (1978) were made, and no change was made in the law on which those 
decisions were based.  In light of this legislative acquiescence, and absent any subsequent 
judicial decisions expanding the scope of the constitutional or common law right of 
privacy in information of the type requested, we have no basis on which to overrule those 
prior decisions.

	The requests for information in this case go beyond the information dealt with in 
Open Records Decision Nos. 212 (1978) and 188 (1978).  The information in those 
decisions was limited to identifying persons making recommendations, those who had 
been recommended, and those who had applied for an appointive office.

	In Open Records Decision No. 212 (1978) this office recognized that the content 
of some communications might disclose highly intimate or embarrassing facts so as to 
raise the issue of whether that information might be excepted from public disclosure 
under the privacy concept under sections 3(a)(1) or 3(a)(9).  That decision advised then-
Governor Briscoe:

If you believe that a particular letter falls within an exception, the 
information should be submitted to the Attorney General in 
accordance with section 7 of the Act, for an in camera inspection 
and determination of whether and to what extent the information 
may be withheld.

	You have submitted two types of documents concerning appointments as 
“examples of the type of communications requested by the media.”  While we discuss 
this question in terms of these examples, our opinion is necessarily limited to the 
documents submitted to us.

	One example of the first type is a memorandum to the file listing names of 
persons recommended for appointment to particular positions by other persons.  Another 
is a letter from a person submitting an application and listing a number of appointive 
positions the person would accept.  Two others are letters from persons applying for 
appointment to particular positions.  One letter simply urges the appointment to the 
Public Utility Commission of someone who will represent the public, without submitting 
any name.

	You have not called our attention to any information in any of this 
correspondence which you regard as containing “highly intimate or embarrassing facts 
the publication of which would be highly objectionable to a reasonable person.”  We 
have reviewed it and do not find any basis for so characterizing any of the material 
submitted.  Neither have you shown that disclosure of any of this information would 
result in the type of specific physical or economic harm which the United States Supreme 
Court has required to support a claim of infringement of First Amendment associational 
rights.  See Open Records Decision No. 212, at 3 (1978).  It is our decision that none of 
the documents you have submitted containing this type information are excepted from 
required public disclosure under either section 3(a)(1) or 3(a)(9).

	The second type of information you have submitted includes correspondence and 
memorandums of conversations about prospective appointees.  All of the examples you 
have submitted include information which is highly derogatory to the individual who is 
the subject of the communication.  Most appears to have been developed in the process 
of conducting informal background checks.  The examples you have submitted include 
information on financial difficulties, personality evaluations, suggestions of mental 
illness, questions about an individual's honesty and integrity, and evaluations of a 
person's professional ability.  We believe that information of this type would constitute 
“highly intimate or embarrassing facts the publication of which would be highly 
objectionable to a reasonable person.”  Thus, a privacy interest under the test set out by 
the Texas Supreme Court can be established.  The remaining portion of that test is 
whether the public has a legitimate interest in the material.  While under some 
circumstances or at some stage in the process a public interest in these documents might 
be established, we do not believe that the public can be said to have a legitimate interest 
in this sort of highly derogatory, largely unverified information at such an early and 
speculative stage in the appointment process.  See, e.g., Open Records Decision No. 159 
(1977).  Under other circumstances or at another stage in the appointment process, it may 
be possible that a legitimate public interest could be established sufficient to overcome 
the first half of the section 3(a)(1) test.  In this case that interest has not been established.  
Accordingly, we do not believe that the documents you have submitted containing 
information of the second type need be revealed.

	In summary, records maintained by the Governor which reveal recommendations 
of persons for appointment to public office are not per se excepted from public 
disclosure.  The documents you have submitted containing derogatory, largely unverified 
information contained in informal background checks of prospective appointees are not 
required to be revealed.  Whether any particular document is required to be released will 
be determined in light of the test established by the Texas Supreme Court in Industrial 
Foundation of the South, supra, i.e., whether the information discloses highly intimate or 
embarrassing facts the publication of which would be highly objectionable to a 
reasonable person and in which the public has no legitimate interest.

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
Susan Garrison
Rick Gilpin
William G Reid