Open Records Decision No. 443
October 21, 1986

	Re:  Whether the Open Records Act, article 6252-17a, V.T.C.S., requires a city to 
release customer utility bills

Mr. Paul H. Hayers
City Attorney
City of Electra
101 North Main
Electra, Texas  76360

Dear Mr. Hayers:

	You have asked if the Open Records Act, article 6252-17a, V.T.C.S., requires the 
city of Electra to grant a citizens' request for access to the city's utility bill ledgers.  In a 
letter to this office, you stated:

	The city of Electra has over 1,600 utility customers, each of 
whom [has] at least one ledger, with several customers having 
multiple ledgers.  The request for information concerns all utility 
bill ledgers. . . .

	We believe that the request for this specific information raises 
the question of an invasion of privacy of the individuals whose 
ledger cards would be open to inspection, which in turn might 
subject the city of Electra and its custodian of records to a cause of 
action by those individuals.  Additionally, it has been held in a 
number of states that giving unreasonable publicity to private debts 
is an actionable invasion of the debtor's right of privacy. . . .

	The city of Electra acknowledges that certain information 
contained on the ledger cards should be open to public inspection, 
this information being that which appears on the top portion of the 
ledger card concerning the customer's name, address and applicable 
rate.  This information, however, has not been requested and, in any 
event, would be impossible to provide as the ledger card also shows 
in each case the billed amount, payment record, and account 
status. . . .

	In Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973), the Texas Supreme 
Court said:

	The right of privacy has been defined as the right of an 
individual to be left alone, to live a life of seclusion, to be free from 
unwarranted publicity.  77 C.J.S. Right of Privacy §1.  A judicially 
approved definition of the right of privacy is that it is the 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 a manner as to outrage or cause 
mental suffering, shame or humiliation to a person of ordinary 
sensibilities.

In Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 
668, 682-83 (Tex. 1976), the court stated:

[T]he tort 'invasion of privacy' is actually a recognition of several 
'privacy interests' considered to be deserving of protection.  
Professor William L. Prosser has categorized these interests into 
four distinct torts, each subject to different rules:

	1.	Intrusion upon the plaintiff's seclusion or solitude, or into 
his private affairs;

	2.	Public disclosure of embarrassing private facts about the 
plaintiff;

	3.	Publicity which places the plaintiff in a false light in the 
public eye;

	4.	Appropriation, for the defendant's advantage, of the 
plaintiff's name or likeness.

William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 389 (1960).

	. . . .

	We recognized in Billings, supra, that an individual has the 
right to be free from 'the publicizing of one's private affairs with 
which the public has no legitimate concern,' but the precise 
requirements for showing an invasion of this particular right of 
privacy have not yet been defined by the courts of this State.  It is 
generally recognized, however, that an injured party, in order to 
recover for public disclosure of private facts about himself, must 
show (1) that publicity was given to matters concerning his private 
life, (2) the publication of which would be highly offensive to a 
reasonable person of ordinary sensibilities, and (3) that the matter 
publicized is not of legitimate public concern.

	You have claimed that privacy interests protect the identities of debtors.  Not all 
of the city's 1,600 utility customers will be "debtors" in the sense that they will be 
delinquent in their utility payments; a few, however, likely will be.  The following 
statement about the privacy implications of the public disclosure of a person's 
indebtedness appears at 33 A.L.R. 3d 156, 162-63 (1970):

A cause of action for invasion of privacy has been recognized where 
the creditor published in a newspaper the debtor's name and the 
amount of his indebtedness.

	In Trammell v. Citizens News Co. (1941), 285 Ky. 529, 148 
S.W.2d 708, a notice published in a newspaper stated that plaintiff 
owed defendant creditor a certain amount on a grocery account, and 
requested plaintiff to let the creditor know if there was any error, 
and if not, to make arrangements for a settlement.  Prior to 
publication, plaintiff had received a threat from the creditor to 
publish the notice if the account was not paid, and plaintiff had 
requested the editor of the newspaper not to publish the notice.  The 
court held that notwithstanding the fact that plaintiff admitted owing 
the amount mentioned in the notice and that the publisher of the 
newspaper was not interested in coercing payment of the debt, both 
the publisher and the creditor were liable to the plaintiff on the 
ground that the publication amounted to an invasion of the plaintiff's 
right of privacy.  The court pointed out that the contents of the 
notice were not matters of public interest, but concerned only the 
creditor and the debtor, and that the publisher of the notice 
necessarily knew that its publication would tend to expose the 
plaintiff to public contempt, ridicule, or disgrace.

	The debt to which the Trammell case referred, however, was a purely private one 
involving only the debtor and the creditor.  This prompted the court's conclusion that "the 
contents of the notice were not matters of public interest, but concerned only the creditor 
and the debtor."  In this instance, by contrast, anyone who is delinquent in his utility 
payments to the city of Electra owes a debt to a governmental entity rather than to a 
private party.  Although the public may have no legitimate interest in private debts, we 
believe that it has a genuine interest in knowing who owes money to the city, as this 
information will enable the public to gain some insight into the manner in which the city 
handles the task of revenue collection and may spur the public to attempt to influence 
city officials to perform that task differently.  We also note that the people requesting 
access to this information stated, in a letter to this office, that "[w]e have reasons to 
suspect fraud in the maintenance (manipulation) of certain public records, particularly 
certain utility accounts."  This shows that there is a heightened public interest in these 
particular utility bills.

	The Industrial Foundation case held that information may be withheld on privacy 
grounds only if it is both highly intimate or embarrassing and of no legitimate concern to 
the public.  To the extent that the disclosure of the city's utility bills would indicate who 
does not owe money to the city, such disclosure would not reveal "highly intimate or 
embarrassing" information; since this is so, it is unnecessary to reach the question 
whether the public would have a legitimate interest in that information.  To the extent 
that such disclosure would reveal who is, or has been, delinquent in their utility 
payments, we conclude, for the reasons expressed above, that even if this information can 
be characterized as "highly intimate or embarrassing," the public does have a legitimate 
interest in it.  In this regard, we note that section 6(3) of the Open Records Act expresses 
a strong legislative policy favoring the disclosure of "information in any account, 
voucher, or contract dealing with the receipt or expenditure of public or other funds by 
governmental bodies."  See also Open Records Decision No. 385 (1983).

	Industrial Foundation held that privacy interests protect against "intrusion[s] upon 
[a person's] seclusion or solitude, or into his private affairs" and against the "public 
disclosure of embarrassing private facts about the [person]."  (Emphasis added).  A debt 
owed to a governmental entity, which is a matter of concern to everyone within that 
entity, cannot, in our view, be characterized as a part of one's "private" affairs.  
Moreover, because the privacy test articulated in Industrial Foundation protects 
information only if it is of no legitimate concern to the public, we conclude that privacy 
interests are not at stake here.  You have not raised any other exceptions.  The city, 
therefore, must release the requested information.

Very truly yours,

Jim Mattox
Attorney General of Texas

Jack Hightower
First Assistant Attorney General

Mary Keller
Executive Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Prepared by Jon Bible
Assistant Attorney General