Open Records Decision No. 328
December 21, 1982

	Re:  Records of housing repair projects funded by the city of Fort Worth

Mr. Wade Adkins
City Attorney
Department of Law
City Hall
Fort Worth, Texas 76102

Dear Mr. Adkins:

	You have asked whether the Open Records Act, article 6252-17a, V.T.C.S., 
requires you to comply with a request for files concerning housing repair projects funded 
under the Neighborhood Improvement Program of the city of Fort Worth.  These files 
contain, inter alia, detailed information regarding repair work done on various houses, 
and information concerning the owners of these houses.  You contend that these files 
may be withheld under sections 3(a)(1), 3(a)(3), or 3(a)(11) of the Open Records Act.

	Section 3(a)(3) excepts from required disclosure:

information relating to litigation of a criminal or civil nature and 
settlement negotiations, to which the state or political subdivision is, 
or may be, a party, or to which an officer or employee of the state or 
political subdivision, as a consequence of his office or employment, 
is or may be a party, that the attorney general or the respective 
attorneys of the various political subdivisions has determined should 
be withheld from public inspection.

	The mere chance of litigation is not sufficient to trigger section 3(a)(3).  Open 
Records Decision Nos. 311 (1982); 288 (1981); 183 (1978).  This exception is applicable 
only where “litigation is pending or reasonably anticipated in regard to a specific matter 
as opposed to a remote possibility among a group or classification.”  Open Records 
Decision No. 139 (1976).

	You advise that these housing repair projects are currently under investigation by 
the city's police department, and that “it is anticipated that criminal and/or civil litigation 
may result from the investigation, which has not yet been concluded.”  As we noted, 
however, the fact that litigation “may result” is insufficient to invoke section 3(a)(3).  
Before we may conclude that section 3(a)(3) applies, we must be presented with concrete 
evidence showing that the claim that litigation may ensue is more than mere conjecture.  
See, e.g., Open Records Decision Nos. 288, 266 (1981).  No such evidence has been 
presented here.

	Section 3(a)(11) excepts:

inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than one in litigation with 
the agency.

	This section only permits the withholding of advice, opinions and 
recommendations.  Open Records Decision Nos. 315, 308 (1982); 273 (1981).  In 
connection with your request, you submitted one file and stated that it is representative of 
the other files at issue here.  We have examined this file, and we conclude that none of 
the information contained therein is “advice, opinion, and recommendation.”  Since we 
do not have the other files before us, we cannot determine whether any information in 
those files may be excepted under section 3(a)(11).  You must make this determination, 
at least in the first instance, in accordance with the section 3(a)(11) test articulated above.

	Section 3(a)(1) excepts from required disclosure “information deemed 
confidential by law, either Constitutional, statutory, or by judicial decision.”  We have 
found no statute or constitutional provision which is applicable here.  If this information 
is confidential, therefore, it must be because the test for common law or constitutional 
privacy is satisfied.

	In Industrial Foundation of the South v. Texas Industrial Accident Board, 540 
S.W.2d 668 (Tex. 1976), the Texas Supreme Court recognized two kinds of section 
3(a)(1) privacy.  “Constitutional” privacy protects information within one of the “zones 
of privacy” described by the United States Supreme Court in Roe v. Wade, 410 U.S. 113 
(1973) and Paul v. Davis, 424 U.S. 693 (1976).  These “zones of privacy” protect matters 
relating to marriage, procreation, contraception, family relationships, and child rearing 
and education.  “Common law” privacy, on the other hand, protects information which 
contains:

highly intimate or embarrassing facts about a person's private 
affairs, such that its publication would be highly objectionable to a 
person of ordinary sensibilities.

540 S.W.2d at 683.  In addition, the information must “not [be] of legitimate concern to 
the public.”  Id. at 685.

	As we observed in Open Records Decision No. 268 (1981), “the scope of 
common law privacy is narrow indeed.”  This office has held that the supreme court's 
exacting standard for common law privacy requires that disclosure of, inter alia, the 
names and addresses of former residents of a public housing development, Open Records 
Decision No. 318 (1982); the home addresses of public employees, Open Records 
Decision No. 169 (1977); certain financial records of individuals, Open Records Decision 
Nos. 246 (1980); 201 (1978); and most medical information relating to individuals, Open 
Records Decision Nos. 262, 260, 258 (1980).

	The information in the “representative” file that you submitted is not excepted by 
a constitutional right of privacy.  With respect to common law privacy, we are unable to 
conclude that the release of any of this information would be “highly objectionable to a 
person of ordinary sensibilities” because it contains “highly intimate or embarrassing 
facts about a person's private affairs,” and that the information is of no legitimate concern 
to the public.

	Since we do not have all of the files before us, we cannot say that none of the 
information in any file would be protected by common law privacy.  For example, some 
medical information pertaining to the owners of the houses in question might be 
protected.  See, e.g., Open Records Decision Nos. 262, 260, and 258 (1980).  Once 
again, you must make the initial determination as to whether any information regarding 
the owners is protected under the privacy tests set forth above.

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 Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger