Open Records Decision No. 260
November 25, 1980

	Re:  Whether an employee's personnel file is open under the Open Records Act

Mr. Brent P. Burford
Assistant City Attorney
825 West Irving Boulevard
Irving, Texas  75060

Dear Mr. Burford:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to whether certain information relating to a workers compensation claim 
against the city of Irving is available to the public.

	With regard to that portion of the record concerning the employee's alleged 
injury, the potential injuries of other employees, and information relating to the possible 
dangers of a particular chemical used by city employees, you have determined that it 
should be withheld from public inspection pursuant to section 3(a)(3) of the Open 
Records Act.  We have examined this material, and have concluded that, in light of the 
pending litigation, you have made a correct determination.

	As to the remainder of the record, consisting of information regarding the 
employee's prior injuries, and the city's safety review board accident sheets and personnel 
status change sheets regarding other injuries, you have not made the required finding that 
these should be withheld pursuant to section 3(a)(3).  Instead you contend that “these are 
medical-related records” and as such, excepted by sections 3(a)(1) and 3(a)(2) of the act.  
You suggest that Open Records Decision No. 237 (1980) provides a basis for this 
contention.

	At issue in Open Records Decision No. 237 were incident reports filed by 
ambulance attendants of the El Paso City-County Health Unit and related to emergency 
medical treatment administered to persons who had given birth under the care of lay 
midwives.  We held that such information was excepted from disclosure by either a 
common law or constitutional right of privacy under section 3(a)(1).

	In Industrial Foundation of the South v. Texas Industrial Accident Board, 540 
S.W. 2d 668 (1976), the supreme court observed that, unlike the federal Freedom of 
Information Act, the Texas Open Records Act contains “no . . . exception . . . for medical 
files, or for files ‘similar’ to medical or personnel files, as is found in exception 6 of the 
federal act.”  540 S.W. 2d at 681.  The court continued:

[a]bsent such a provision, we do not believe that a court is free to 
balance the public's interest in disclosure against the harm resulting 
to an individual by reason of such disclosure.  This policy 
determination was made by the Legislature when it enacted the 
statute.  'All information collected, assembled, or maintained by 
governmental bodies' is subject to disclosure unless specifically 
excepted.  We decline to adopt an interpretation which would allow 
the court in its discretion to deny disclosure even though there is no 
specific exception provided.

Id. at 681-82.

	The court recognized two kinds of privacy which may be derived from section 
3(a)(1).  Constitutional privacy in information -- what the court called “disclosural 
privacy” -- exists only within one of the protected “zones of privacy” delineated by the 
United States Supreme Court in Roe v. Wade, 410 U.S. 113 (1973) and Paul v. Davis, 
424 U.S. 693 (1976):  matters relating to marriage, procreation, contraception, family 
relationships, and child rearing and education.  424 U.S. at 713.  On the other hand, in 
order that information be “deemed confidential by judicial decision,” or withheld under 
the doctrine of “common law privacy,” it must:

contain highly intimate or embarrassing facts the publication of 
which would be highly objectionable to a reasonable person, and . . . 
not [be] of legitimate concern to the public.

540 S.W. 2d at 685.

	The other kind of privacy under the Open Records Act which is relevant to your 
inquiry derives from section 3(a)(2), and its availability is restricted to employees of the 
state or its political subdivisions.  It requires a showing that disclosure of particular 
information would constitute “a clearly unwarranted invasion of personal privacy.”  In 
our opinion, the information you have submitted does not comport with this standard, 
and accordingly, is not excepted by section 3(a)(2).

	We have thoroughly examined all the documents which you contend are excepted 
by section 3(a)(1) and 3(a)(2), and, in our opinion, none of them satisfy the requirements 
imposed for constitutional, common law, or employee privacy.  It is therefore our 
decision that all information submitted which you claim to be excepted from disclosure 
by section 3(a)(3) is so excepted, but that the remaining material is not excepted and 
should be disclosed.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Richard E. Gray III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Acting Chairman
Jon Bible
Rick Gilpin
Bruce Youngblood