Open Records Decision No. 525
June 19, 1989

	Re:  Whether information in notary complaint investigation files maintained by 
the Secretary of State must be released under the Texas Open Records Act, article 6252-
17a, V.T.C.S.  (RQ-1269)

Honorable Jack Rains
Secretary of State
P.O. Box 12697
Austin, Texas  78711

Dear Mr. Rains:

	The Secretary of State's Statutory Documents Section received a request under 
the Texas Open Records Act, article 6252-17a, V.T.C.S., for a listing of all complaints 
against notaries public and for "permission to review all complaint files that exist in your 
office."  Your request letter indicates that the Secretary of State's office is willing to 
release complaint information, including the name of the complainant, the name of the 
notary complained of, and the final action taken by the Secretary of State's office.  You 
express concern, however, about releasing the entire complaint file.  You claim that 
sections 3(a)(1), 3(a)(3), and 3(a)(11) of the Open Records Act protect some of the 
information from required public disclosure.  You also ask about the effect on the open 
records request of section 406.012 of the Government Code. 

	Subsection (a) of section 406.012 of the Government Code provides:

	After a notary public qualifies, all records concerning the 
appointment and qualification of the notary public shall be kept in 
the office of the secretary of state.  The records are public 
information.  (Emphasis added.)

This provision expressly makes public "all records concerning the appointment and 
qualification" of notaries public.

	Subsection (a) of section 406.012 of the Government Code makes public all 
records relating to the "appointment and qualification" of notaries public.  Your request 
letter notes that the terms "appointment" and "qualification" have specific meanings:

Appointment involves the submission of an application by a person 
desiring to be a notary public, and the action by the Secretary to 
appoint such person to the office of notary public.  Qualification is 
the process whereby an appointed notary public pays to the 
Secretary the fees required for commissioning and secures a bond 
for faithful performance of duties.  We recognize that the records of 
this office relating to appointment and qualification of a notary 
public are public records in accordance with section 9.  We believe 
that section 9 may, in fact, limit the notary public information which 
is public to appointment and qualification information, and may be 
interpreted to exclude from public information, other information 
pertaining to notaries public such as information regarding 
complaints against the notary public and pending administrative 
actions which may result in revocation, suspension or taking of 
other disciplinary action against the notary.

You argue that complaint files are not records relating to the appointment and 
qualification of notaries public and that the files are, therefore, by negative implication, 
not public records.

	Section 406.005 of the Government Code sets forth specific information that 
applicants must include on their applications for appointment.  Several other provisions 
address the process and requirements for appointment and reappointment of notaries 
public.  See, e.g., Gov't Code §§ 406.006, 406.007, 406.009, 406.010, 406.011.  Section 
406.009 provides for the rejection of the appointment and the suspension or revocation of 
the commission of a notary public for "good cause."  Complaints against notaries public 
could result in the rejection of an application for reappointment or in the suspension or 
revocation of the commission of a notary public.  Nevertheless, complaints against 
notaries public do not concern the appointment of notaries public within the meaning of 
subsection (a) of section 406.012 of the Government Code.  Nor do complaints relate to 
the qualification of notaries public.  See Gov't Code § 406.006 (applicant must "qualify" 
by taking oath, posting bond, and paying fees).  Notary public complaint files therefore 
are not expressly made public by section 406.012.  Of course, if a complaint results in 
action by the Secretary of State such as refusing reappointment or revoking the 
commission of a notary public, the letter from the Secretary of State may be a public 
record.  See V.T.C.S. art. 6252-13a, § 4(a)(3) (all final orders, decisions, and opinions of 
an administrative agency shall be made available for public inspection).  The Open 
Records Act exceptions do not, as a general rule, apply to information expressly made 
public by statutes other than the Open Records Act.  Open Records Decision Nos. 147 
(1976); 43 (1974); see also Open Records Decision Nos. 511 (1988); 221 (1979).

	You suggest that the fact that certain records are designated expressly as public 
by section 406.012 implies that the records not designated public are exempt from public 
disclosure.  We disagree.  The purpose of section 406.012 of the Government Code is to 
provide the public an express right of access to specific information, information 
concerning the "appointment and qualification" of notaries public.  The legislature 
initially passed the provision before the enactment of the Open Records Act.  Prior to the 
enactment of the Open Records Act, the public might not have had a right of access to 
information that was not expressly designated public.  But see Hutchins v. Texas 
Rehabilitation Comm'n, 544 S.W.2d 802 (Tex. Civ. App.--Austin 1976, no writ) 
(common-law right of access of individual to information about that individual); Palacios 
v. Corbett, 172 S.W. 777 (Tex. Civ. App.--San Antonio 1915, writ ref'd) (common-law 
right of citizen to information regarding public funds); Open Records Decision No. 25 
(1974) (common-law right of public to records that statute required justice of the peace 
to keep).  The Open Records Act expressly makes public all information held by 
governmental bodies unless one of the act's exceptions to disclosure protects the 
information.  V.T.C.S. art. 6252-17a, § 3(a); Attorney General Opinion JM-672 (1987).  
Information cannot be withheld from public disclosure by negative implication simply 
because a statute designates other specific information as public information.  See Open 
Records Decision No. 465 (1987) (nullified on other grounds by statute, see Open 
Records Decision No. 498 (1988)).  Consequently, notary complaint files are not exempt 
from public disclosure simply because subsection (a) of section 406.012 of the 
Government Code does not expressly list complaint files as public information.

	You claim that sections 3(a)(1), 3(a)(3), and 3(a)(11) of the Open Records Act 
protect information in notary complaint files.  The documents you submitted for review 
include an "Information Interview" sheet, a memorandum from an attorney in the 
Corporations Section to a special assistant in the Statutory Documents Section, a cover 
letter transmitting a Petition for Revocation of Notary Public Commission, a cover letter 
transmitting a copy of a Proposal for Decision, Proposals for Decision, Default Judgment 
and Order of Revocation, Motions to Dismiss, Agreed Settlements, requests to the 
Department of Public Safety for the criminal history of applicants for appointment, 
reports of Department of Public Safety Investigations, affidavits from complainants 
against notaries public, responses from notaries public about complaints, and Secretary of 
State attorneys' notes of interviews with complainants and with law enforcement 
officials.

	To claim section 3(a)(3), the litigation exception, the governmental body must 
show:  1) that litigation is actually pending or reasonably anticipated and 2) that the 
information in question "relates" to the litigation such that withholding the information is 
necessary to preserve the governmental body's strategy or legal interests in the litigation.  
Open Records Decision No. 478 (1987); see Open Records Decision Nos. 416 (1984); 
180 (1977); 135 (1976).  Many of the documents you submitted as representative 
samples are pleadings filed in administrative hearings to revoke the commissions of 
notaries public.  Transmittal letters, pleadings, motions, proposed orders and the like 
cannot be withheld from disclosure under section 3(a)(3) once they have been released to 
the party in litigation against the governmental body.  Further, you have not shown how 
release of the other documents would impair the Secretary of State's litigation interests.

	Section 3(a)(11) protects advice and opinion on policy matters in order to 
encourage open and frank discussion between subordinates and supervisors in the 
deliberative process.  Austin v. City of San Antonio, 630 S.W.2d 391, 394 (Tex. App.--
San Antonio 1982, writ ref'd n.r.e.); see Open Records Decision Nos. 464 (1987); 222 
(1979).  The test under section 3(a)(11) is whether inter-agency or intra-agency 
information consists of advice, opinion, or recommendation that is used in the executive 
deliberative process.  Open Records Decision No. 464.  Facts and written observations of 
facts and events, when such information is severable from advice, opinion, or 
recommendation, cannot be withheld under section 3(a)(11).  Id. at 3.  Whether specific 
information falls within section 3(a)(11) depends upon the circumstances surrounding the 
creation or collection of the information.  Id. at 4.

	The information you submitted for review does not include the kind of advice, 
opinion, or recommendation protected by section 3(a)(11).  The one memorandum 
included in the representative sample consists of a factual account of an interview of a 
complainant.  Section 3(a)(11) does not apply.

	Section 3(a)(1) protects "information deemed confidential by law, either 
Constitutional, statutory, or by judicial decision."  This includes common-law and 
constitutional privacy.  Industrial Found. of the South v. Texas Indus. Accident Bd., 540 
S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 930 (1977).  Information may be 
withheld under the "public disclosure of private facts" privacy right reflected in section 
3(a)(1) only if the information contains highly intimate or embarrassing facts about a 
person's private affairs such that release of the information would be highly objectionable 
to a reasonable person and the information is of no legitimate concern to the public.  Id. 
at 683-85.  A governmental body must withhold information under section 3(a)(1) on the 
basis of "false light" privacy only if the governmental body determines that release of the 
information would be highly offensive to a reasonable person, that public interest in 
disclosure is minimal, and that serious doubt exists about the truth of the information.  
Open Records Decision No. 438 (1986).  Each part of this test must be met 
independently.

	With regard to these common-law privacy tests, even if release of the information 
would be embarrassing or if the Secretary of State has doubts about the truth of 
information contained in notary public complaint files, much of the information may be 
public.  It cannot be said that information about complaints against notaries public is 
ordinarily of no legitimate concern to the public or that public interest in disclosure is 
"minimal."  The public has a legitimate interest in complaints against individuals who are 
licensed or supervised by the state.  See, e.g., Open Records Decision Nos. 438 (1986) 
(complaint against public employee); 308 (1982) (investigation of state licensee); 208 
(1978) (complaint against peace officer).  On the other hand, if the Secretary of State 
demonstrates that a complaint is not true, there may be no public interest in it.  Decisions 
about common-law privacy must be made on a case-by-case basis.  The representative 
file you submitted for review is not protected.

	Like common-law privacy, constitutional privacy has several different aspects.  
The Industrial Foundation court indicated that section 3(a)(1) protects information within 
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).  None of the zones is 
implicated in the file you submitted for review.  The right of privacy also includes a 
second interest, in nondisclosure or confidentiality, that is somewhat broader.  Fadjo v. 
Coon, 633 F.2d 1172, 1175 (5th Cir. 1981).  Information need not necessarily fall into 
one of the traditional "zones of privacy" to be protected by federal constitutional 
disclosural privacy principles.  Open Records Decision No. 455 (1987), discussed Fadjo 
v. Coon, supra, and other developments in federal decisions on constitutional disclosural 
privacy and concluded that a balancing test applies that balances the public interest in 
disclosure with the private nature of the information.  We have reviewed the 
representative file you submitted and have determined that federal constitutional privacy 
does not apply.

	In Texas State Employees Union v. Texas Dep't of Mental Health and Mental 
Retardation, 746 S.W.2d 203 (Tex. 1987), the Texas Supreme Court recognized a state 
constitutional privacy right.  The court held that a polygraph policy of the Department of 
Mental Health and Mental Retardation resulted in an invasion of privacy.  The court was 
influenced by the highly intrusive nature of the control questions and by the unreliability 
of such tests.  The control questions included "Do members of your family smoke dope?" 
and "Have you beaten your kids?"  Id. at 204.  The questions related to areas having 
nothing to do with the employee's job performance.  The questions also intruded into 
areas protected by federal constitutional privacy principles.  Id. at 205.  Complaints filed 
against an individual for actions that are regulated by the state stand on a different 
footing.  These actions are not related solely to an individual's home or private life; they 
relate to the individual's government regulated interaction with the public.  Texas 
constitutional privacy does not protect the representative file you submitted for review.

	Finally, we note that the file you submitted for review contains criminal history 
information provided by the Texas Department of Public Safety.  This information may 
be withheld on the authority of previous decisions.  See, e.g., Attorney General Opinion 
H-683 (1975).

SUMMARY

	Information in the Secretary of State's complaint files against 
notaries public cannot be withheld by negative implication simply 
because that type of information is not listed in subsection (a) of 
section 406.012 of the Texas Government Code.  The Texas Open 
Records Act, article 6252-17a, V.T.C.S., makes public all 
information held by governmental bodies unless the information 
falls within one or more of the act's specific exceptions to 
disclosure.  Sections 3(a)(1), 3(a)(3), and 3(a)(11) do not apply to 
the representative sample complaint file submitted for review except 
with regard to the criminal history information provided to the 
Secretary of State by the Department of Public Safety.

Very truly yours,

Jim Mattox
Attorney General of Texas

Mary Keller
First Assistant Attorney General

Lou McCreary
Executive Assistant Attorney General

Judge Zollie Steakley
Special Assistant Attorney General

Rick Gilpin
Chairman, Opinion Committee

Jennifer S. Riggs
Chief, Open Government Section
of the Opinion Committee

Prepared by Jennifer S. Riggs
Assistant Attorney General

 Section 406.012 derives from article 5949, repealed by the 70th Legislature.  The 70th 
Legislature also purported to amend section 9 of article 5949.  Acts 1987, 70th Leg., ch. 891, § 5, at 
2989.  The amendment to section 9 of repealed article 5949 must be given effect if possible.  Gov't Code 
§ 311.031(c).  Subsection (a) of section 406.012 of the Government Code refers to keeping records only 
"[a]fter a notary public qualifies."  The 70th Legislature, however, deleted this language from section 9 of 
article 5949.  Acts 1987, 70th Leg., ch. 891, § 5, at 2989.  It is unnecessary to reconcile these provisions 
here.