Petition — Texas Industrial Accident Board v. Industrial Foundation of the South

Supreme Court brief1977

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SUPREME COURT OF THE UNITED STATES

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OCTOBER TERM, 1976

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TEXAS INDUSTRIAL ACCIDENT BOARD, ET AL

Petitioners

INDUSTRIAL FOUNDATION OF THE SOUTH

‘ Respondent

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of the

State of Texas

FRANK W. ELLIOTT

2500 Red River

Austin, Texas 78705

DOUGLAS MATTHEWS

Schmidt & Matthews

723 Main

810 Houston Bar Center Bidg.

Houston, Texas 77002

BOB L.. WILSON

500 Oil & Gas Building

Wichita Falls, Texas 76301

_ BROADUS A. SPIVEY

Spivey, Hazel, Scarborough & Grigg

P. 0. Box 2011

Austin, Texas 78768

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1.D.A. Press 901 W. 24th 78705 (512) 477-3641

LA aS os

INDEX

Constitutional and Statutory

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Statement of the Case ........: icteneca (ukdedeneess

Reasons for Allowance of the Writ..............0006:

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Appendix

Opinions of the Supreme Court of Texas

Opinion for the Court by Justice Doughty .........

Concurring Opinion by Justice Daniel .............

Concurring Opinion by Justice Johnson ...........

Dissenting Opinion by Justice Reavley joined

by Justices Steakley, Pope and Denton ..........

Opinions of the Court of Civil Appeals for

the Ninth Supreme Judicial District of Texas

Opinion for the Court by Associate Justice Keith ...

Dissenting Opinion by Chief Justice Dies ..........

Table of Cases

Page

Department of Air Force v. Rose,

U.S. pe, SUED \ cciascusbasenas 7

Greene v. McElroy,

360 U.S. 474, 492, 79 S.Ct. 1400, 1411 (1957) ........... 6

Meyer v. Nebraska,

286 U.S. 390, 399, 41 S.Ct. 625. 626-627 (1923) ......... 8

Paul v. Davis,

U.S. a SEP NUUED anccvacenaneesen 7.8

Roe v. Ingraham,

403 F.Supp. 931, 44 L.W. 2122 (S.D.N.Y., 3-judge, 1975) .6, 9, 10

Texas Industrial Accident Board v. Industrial Foundation

of the South,

re se ce eaveneeeceses 4.5

Whalen v. Roe, -

U.S. ___., 96 S.Ct. 164 (Marshall, C.J., 1975)....9, 10

Statutes Cited

Freedom of Information Act, Pub. L. 93-504, § 1-3,

if ee OE) | eerrrrrrrTrrrrrrirrr iii 6,7

Privacy Act of 1974, Pub. L. 93-579, 88 Stat. 1897,

5 U.S.C., § 552a

en UC EUEE CT OOS NE CCO CSS CONedECeRS 7

I i a i ep aeedheeenneneunnseuees 6

28 U.S.C. § 1257 (3)... cece eee cece cree eee eeeeecneceees 2

Vernon’s Annotated Civil Statutes,

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

TEXAS INDUSTRIAL ACCIDENT BOARD, ET AL

Petitioners

INDUSTRIAL FOUNDATION OF THE SOUTH

Respondent

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of the

State of Texas

The Petitioners, Texas Industrial Accident Board, J. J.

McCuan, James T. Sparks and Jerry Belcher, respectfully pray

that a writ of certiorari issue to review the judgment and opinion

of the Supreme Court of Texas entered in these proceedings on

July 21, 1976.

OPINIONS BELOW

The opinion of the Supreme Court of Texas, two specially

concurring opinions and a dissenting opinion are reported at 540

S.W.2d 668 and are reproduced in the Appendix. infra, at pp.

A-|, A-34-35 and A-42, respectively.

The opinion of the intermediate appellate court, the Court of

Civil Appeals for the Ninth Supreme Judicial District of Texas,

and a dissenting opinion are reported at 526 S.W.2d 211 and

reproduced in the Appendix, infra, at pp. A-46 and A-62.

JURISDICTION

The Supreme Court of Texas denied rehearing on September

29, 1976. This petition for certiorari is being filed within ninety

days of that date. The jurisdiction of the Court is invoked under

28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. Is there a constitutional right of privacy that protects an

injured worker against disclosure by a state agency to an associa-

tion of private employers of information personal and intimate in

nature the injured worker is required to submit to that agency in

support of his notice of injury and claim for workmen's compen-

sation benefits?

2. Is information of a personal and intimate nature submitted

by an injured worker to a state agency so protected by a consti-

tutional right of privacy as to be deemed “confidential” and

thereby excepted from disclosure under a state open records act?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional provisions which this case involves are

those from which a right of privacy emanates including the First,

Fourth, Fifth and Ninth Amendments as applied to the states

through the due process clause of the Fourteenth Amendment to

the United States Constitution.

The state statute involved is Article 6252-17a, Vernon's

Annotated Civil Statutes (Supp., 1975-1976), the germane

portion of Section 3(a)(1) of which provides:

“Sec. 3. PUBLIC INFORMATION. (a) All information

collected, assembled, or maintained by governmental bodies

pursuant to law or ordinance or in connection with the

transaction of official business is public information and

available to the public during normal business hours of any

governmental body, with the following exceptions only:

(1) information deemed confidential by law, either Con-

stitutional, statutory, or by judicial decision; . . .”

STATEMENT OF THE CASE

The Industrial Foundation of the South, a non-profit corpora-

tion comprised of approximately 282 member-employers who

employ workers in the southwestern part of the United States,

brought this action in a State District Court against the Industrial

Accident Board, its members and executive director seeking a

writ of mandamus to compel the Board to make available for

inspection information from every claim for workmen's com-

pensation filed with the Board, to wit: file number, claimant's

name and social security number, name of claimant's employer,

nature of injury, and name of claimant's attorney, if any. The

information was sought and action brought pursuant to the

Texas Open Records, Article 6252-17a, Vernon’s Annotated

Civil Statutes (Supp., 1975-1976).'

To the petition for mandamus Board Defendants responded,

‘inter alia, that the information sought should be deemed “con-

fidential” within the purview of Section 3a(1) of the Open Rec-

ords Act.? An individual injured worker intervened contending

that the information sought by the Foundation “is deemed con-

fidential” and its disclosure “would constitute a clearly unwar-

ranted invasion of personal privacy.”’ Thereafter the principal

| $40 S.W.2d at 672.

? Defendants’ Original Answer, para. III.

* Plea in Intervention, para. II.

parties filed their respective motions for summary judgment with

supporting affidavits and briefs in which issue was specifically

joined on the matter of invasion of privacy of the individual

workman filing a claim for workmen’s compensation. The Trial

Court granted summary judgment in favor of the Foundation

declaring the information it sought to be public records and

subject to inspection and copying subject however to the sole

limitation as to a claim “which involves only an injury to the

genitalia of the body” which the Court declared to be privileged

and not subject to inspection.

In the Court of Civil Appeals the Board Appellants continued

to contend that information sought from the claim forms are

excepted from operation of the Open Records Act “as informa-

tion deemed confidential by the constitutional right of privacy,”

but the point was overruled by the intermediate appellate court.

Texas Industrial Accident Board v. Industrial Foundation of

the South, 526 S.W.2d 211 at 216-217; App. pp. A-52-53. Before

the Supreme Court of Texas the contention was renewed and ex-

pressly decided adversely to Board Respondents, 540 S.W.2d

at 678, App. pp. A-13-19.

Thus the federal question was timely and properly raised and

urged and reurged unsuccessfully at every step in the State pro-

ceeding so that this Court has jurisdiction to review the judgment

on Writ of Certiorari.

REASONS FOR ALLOWANCE OF THE WRIT

A Texas workman who is injured in the course of his employ-

ment must timely complete, execute and file a form notice of

injury and claim for compensation in order to obtain payment

of medical and hospital expenses and disability benefits.* To be

compensated for his injury a workman is required by the State

to reveal to the State certain intimate personal matters as well

as his relationship with others, some of which are sought by the

Foundation here: social security number,’ name of employer,®

nature of injury’ and name of attorney.®

* Theoretically an employee may preserve a right of action at common law

and thereby relinquish claiming under the Workmen's Compensation Act but

the practical reality is that the right is waived through inaction.

’ By the provisions of Section 7 of Public Law 93-379, the Privacy Act of

1974, 88 Stat. 1897, it is unlawful to deny any right, privilege or benefit to any

individual who refuses to disclose his social security number unless disclosure

is required by federal statute or before January |, 1975, was required under

any statute or regulation to verify identity of an individual.

° Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 1411 (1957) confirms

that “the right to hold specific private employment and to follow a chosen pro-

fession free from unreasonable governmental interference comes within the

‘liberty’ and ‘property’ concepts” of constitutional due process clauses.

” Roe v. Ingraham. 403 F.Supp. 931.44 L.W.2122(S.D.N.Y., 3-judge, 1957):

“An individual's physical ills and disabilities. the medication he takes, and the

frequency of his medical consultation are among the most sensitive of personal

and psychological sensibilities.” Accord: Roe v. Ingraham, 480 F.2d 102.

(2 Cir., 1973) and see Whalen v. Roe, US. . 96 S.Ct. 164

(Marshall, C. J., 1975).

* It is universally accepted that an attorney-client relationship enjoys a

privilege of confidentiality of the highest order. The very fact of existence of

the relationship is in some circumstances deemed confidential.

Like Department of Air Force v. Rose, US. 96

S.Ct. 1592 (1976) the claim of right to privacy in this case “arises

in quite a different context” than other recent decisions of the

Court such as Paul v. Davis, U.S. ., 96 $.Ct. 1155

(1976) in that here as in Rose the custodian of the records, Peti-

tioner Texas Industrial Accident Board, has chosen not to dis-

seminate and resisted efforts to inspect the records and its deci-

sion is being challenged by a corporaie representative of em-

ployers under the Texas Open Records Act — a distinction noted

by Mr. Justice Rehnquist, 96 S.Ct. at 1612. Rose dealt with an

exemption to disclose “that would require a balancing of indi-

vidual’s right to privacy against preservation of the basic purpose

of the Freedom of Information Act ‘to open agency action to

the light of public scrutiny’,” 96 S.Ct. at 1604.9 Accepting that

it must determine “whether any of the information requested

by the Foundation is protected by the constitutional right of

privacy.” 540 S.W.2d at 678, App. p. A-14, the court below found

that one “does not forfeit all right to control access to intimate

facts concerning his personal life merely because the State has a

legitimate interest in obtaining that information” but, never-

theless, eschewed the balancing formulation of Rose and opted

instead to rely on the quite different case of Paul v. Davis, supra,

to hold that making personal information and data available

to public inspection does not abridge the constitutional right

to privacy “unless the State’s action restricts his freedom in a

sphere recognized to be within a zone of privacy protected by

the Constitution,” 540 S.W.2d at 681, App. p. A-18. Thus was

decided a substantial constitutional question in a way probably

not in accord with applicable decisions of this Court.

% That the “persona! privacy” of which Congress sought to prevent a clearly

unwarranted invasion was not thought to be created by legislative enactment

is shown by the fact that the same Congress which enacted the 1974 amend-

ments to the Freedom of Information Act by Pub.L. 93-504, § 1-3, 88 Stat.

1561-1564. also enacted the Privacy Act of 1974, Pub.L. 93-579, 88 Stat. 1897,

5 USC § 552a. Section 2 of which recites the Congressional finding, inter alia:

(4) The right to privacy is a personal and fundamental right protected

by the Constitution of the United States. . .”

, The intimate nature of the matters that a claimant is required

to reveal to the Industrial Accident Board in connection with his

claim makes this situation far different from Paul v. Davis,

US. 96 S.Ct. 1155, 1166 (1976) upon which the

majority opinion of the court below bases so much reliance. The

essence of the claim by Davis was defamation by publicizing an

assertion that he was an active shoplifter by reason of having

been arrested on that charge. This Court refused to extend

substantive privacy decisions to a claim that the State “may not

publicize a record of an official act such as arrest,” and the

majority opinion of the court below draws from the Davis sum-

mation to hold that the information sought by the Foundation

“normally does not concern matter relating to marriage, procre-

ation, contraception, family relationships, or child rearing and

education . . .” as if those were the only activities protected in

the concept of liberty guaranteed against infringement by a state

in the Fourteenth Amendment. Neither the Pau/\. Davis opinion

nor the majority opinion of the court below adverts to the lan-

guage in Meyer v. Nebraska, 286 U.S. 390, 399, 41 S.Ct. 625.

626-627 (1923) that speaks of more activities than those merely

summarized in former opinions:

“While this Court has not attempted to define with exact-

ness the liberty thus guaranteed, the term has received

much consideration and some of the included things have

been definitely stated. Without doubt, it denotes not merely

freedom from bodily restraint but also the right of the in-

dividual to contract, to engage in any of the common occu-

pations of life . . . and generally to enjoy those privileges

long recognized at common law as essential to the orderly

pursuit of happiness by free men.”

Thus much of the information required of a claimant which is

sought by the Foundation is, indeed, embraced within the Four-

teenth Amendment guarantee of liberty — certainly the right

of the claimant to contract for employment both present and

future as well as the right to contract with an attorney of his

choice and, further, to actually engage in “the common occu-

pations of life” without fear of being blacklisted by the very

information he is required to turn over to his sovereign.

Clearly, in context even the name and other identifying data

of a claimant for workmen’s compensation benefits must be

protected against disclosure. In the trial court the Foundation

said its purpose in obtaining the information is to compile and

distribute it to its employer members “to check out or determine

the accuracy and truthfulness of a prospective employee’s appli-

cation for employment with a member company” of the Foun-

dation.'? Before the intermediate appellate court the Foundation

added to its reason for seeking the information:

“The relevance of a prospective employee's past history

to the job or task which he seeks to perform, even though

he may be physically incapable of performing same, is the

reason... .”!!

However subtly phrased, it is evident that the Foundation seeks

to serve its own interests and those of its employer members

by providing a means of denying employment to persons who

have made a claim for workmen’s compensation. The State

of Texas has proscribed blacklisting and discriminating against

workmen who have filed such claims by enacting Articles 5196c

and 5196d and Article 8307c, Vernon’s Annotated Civil Statutes.

Thus requiring the State, through Petitioner Board, to be party

to such endeavors — as the decision of the court below mandates

— implicates substantive aspects of the Fourteenth Amendment

that guarantee rights which are at once “fundamental” and “im-

plicit in the concept of ordered liberty,” including the right to

contract for and engage in remunerative employment.

10 526 S.W.2d at 215, App. p. A-50.

\! $26 S.W.2d at 215, App. p. A-50.

Probable jurisdiction has been noted in Whalen v. Roe, No.

75-839 in this Court, 96 S.Ct. 1100, an appeal from Roe v. In-

graham, 403 F.Supp. 931, 44 LW2122 (S.D.N.Y., Three-Judge,

1975). Primarily on the basis of opinions of this Court con-

cerning abortion'? the /ngraham Court held that matters of

bodily ills and medication are protected by the constitutional

right of privacy. But, as Mr. Justice Marshall writing as Circuit

Justice in Whalen v. Roe, No. A-368, U.S. enemy 90 SCL.

164, has pointed out, the /ngraham Court drew support also

from the opinions in California Bankers Assn. v. Shulz, 416

U.S. 21, 94 S.Ct. 1494 (1947) “which it read as indicating that

a majority of this Court would accord constitutional protection,

at least against a wholesale reporting requirement, to all ‘inti-

mate areas of an individual’s personal affairs’.”. Wholesale dis-

closure of intimate areas of one’s personal affairs concerning

the nature of an industrial injury or occupational disease, iden-

tity of his attorney and of his own social security number is the

objective of the Foundation in our case. The federal question

presented here is similar to and as substantial as that presented

in Whalen v. Roe, supra, and like considerations justify and

support grant of certiorari to review the decision of the Supreme

Court of Texas in this “sensitive and developing area of the law”

that has been applied “in a manner plainly inconsistent” with

the prior decisions of the Court, Whalen v. Roe, supra, 96 S.Ct.

at 166.

2 Roe v. Wade, 410 U.S. 113,93 S.Ct. 705 (1973) and Doe v. Bolton, 410 U.S.

179, 93 S.Ct. 739 (1973).

CONCLUSION

For these reasons and upon the argument made and authorities

cited a writ of certiorari should issue to review the judgment and

opinions of the Supreme Court of Texas.

Respectfully submitted,

BOB L. WILSON

500 Oil & Gas Building

Wichita Falls, Texas 76301

FRANK W. ELLIOTT

2500 Red River

Austin, Texas 78705

DOUGLAS MATTHEWS

Schmidt & Matthews

723 Main

Houston Bar Center Bldg.

Houston, Texas 77002

BROADUS A. SPIVEY

Spivey, Hazel, Scarborough

& Grigg

P. O. Box 2011

Austin, Texas 78768

Counsel for Petitioners

—

CERTIFICATE OF SERVICE

I, Broadus A. Spivey, a member of the Bar of the

Supreme Court of the United States do hereby certify that three

copies of the above and foregoing Petition for Writ of Certiorari

have been served upon Respondent by depositing the same in

a United States Post Office or Mail Box with First Class Postage

prepaid, addressed to George J. Petrovich, Esq., Suite 192.

600 Camp wie Boulevard, Fort Worth, Texas 76116, on

this the _\1“ Way of December, 1976.

APPENDIX

IN THE SUPREME COURT OF TEXAS

No. B-5535

INDUSTRIAL FOUNDATION OF {YX

THE SOUTH, x

Petitioner X

X From Travis County

V. X

X Ninth District

TEXAS INDUSTRIAL ACCIDENT X

BOARD, et al, 1

Respondents Xx

This case requires that we determine whether Texas’ Open

Records Act, TEX. REV. CIV. STAT. ANN. art. 6252-17a

(Supp. 1974-1975) compels the Texas Industrial Accident Board

to disclose to the Industrial Foundation of the South certain

information concerning claims for workmen’s compensation

benefits. We hold that the information requested, with some

exceptions to be noted, is “public information” as defined by the

Open Records Act and must be disclosed to the requesting party.

Texas’ Open Records Act (“the Act”) became effective on

June 14, 1973. Eight days thereafter, the Industrial Foundation

of the South (“the Foundation”), a non-profit corporation com-

prised of approximately 282 member companies who employ

workmen in the southwestern part of the United States, requested

the Industrial Accident Board (“the Board”) to furnish them

the following items of information from every claim for work-

men’s compensation filed with the Board: the file number, the

claimant's name and social security number, the name of claim-

ant’s employer, the nature of the injury, and the name of claim-

ants attorney, if any. On June 29, 1973, the Board, in accordance

with Section 7(a) of the Act, requested an opinion from the

Attorney General to determine whether the information re-

—*

quested was “public information” as defined by Section 3(a).

On November |, 1973, the Attorney General issued Open Rec-

ords Decision No. 8, which, although expressing concern as

to the practical difficulties of supplying such a voluminous

quantity of data, declared that no exception of Section 3(a) would

justify withholding access to the requested information.

Subsequent to the Attorney General’s decision the Founda-

tion again requested the Board to furnish the items of informa-

tion; again the Board refused. Soon thereafter, the Foundation

brought this suit pursuant to Section 8 of the Act, in the District

Court of Travis County, against the Board, its members and its

executive director (“defendants”) seeking a writ of mandamus

to compel the Board to make the requested information avail-

able for its inspection.

As part of their discovery in preparation for this suit, the de-

fendants served interrogatories on the Foundation which asked

for detailed information regarding the organization, member-

ship and activities of the Foundation. The defendants also

asked the purpose for which the Foundation sought the infor-

mation; whether such information had ever been used by a

member of the Foundation as the basis for discharing or refus-

ing to hire an employee; and the procedure used for furnishing

information obtained by the Foundation to its members.

The Foundation moved to suppress all of these interrogatories

on the ground that Section 5(b) of the Act precludes the Agency

from inquiring into the purpose for which the information is

requested. The trial court granted the Foundation’s motion to

suppress all the interrogatories except 2. A., B., and C., which

asked the identity and position of the person answering the in-

terrogatories, and 12, which asked the purpose for which the

information was sought. In answer to Interrogatory No. 12 the

Foundation replied:

The purpose of the information requested by Plaintiff's

attorney is to be used to check out or determine the accu-

—

racy and truthfulness of a prospective employee's appli-

cation for employment with a member company of the

Industrial Foundation of the South. The requested infor-

mation is compiled by the Plaintiff for pre-employment

purposes only. No one other than a member company of

the Industrial Foundation of the South can have the re-

quested information.

All parties moved for summary judgment. The trial court

granted summary judgment for the Foundation, holding that

all the information requested is public information subject to

disclosure under the Act, except for claims which involve “injury

to the genitalia of the body.”* The trial court ordered that

mandamus issue directing the defendants to make the requested

information available for inspection and copying by the Foun-

dation. Defendants appealed this judgment to the Court of Civil

Appeals.

The Court of Civil Appeals held (526 S.W.2d 211) that the

trial court erred in suppressing defendants’ interrogatories. The

Court stated that, if one of the Foundation’s purposes for seek-

ing the information was illegal discrimination against workmen

filing claims,' then the Foundation would not be entitled to

mandamus. because the remedy is equitable in nature and those

seeking it must come into court with clean hands. Thus the Court

concluded that, by refusing to allow defendants to inquire into

the Foundation’s motives, the trial court had denied defendants

the right to prepare a valid defense. The Court also held that

the information requested was not excepted from the operation

of the Act as “information deemed confidential by law, either

Constitutional, statutory, or by judicial decision,” (Section

3(a(1)); and that the Act applies to claims filed before its effec-

tive date as well as to those filed afterward. The case comes to

| The defendants contend that the F oundation intends to use the information

to blacklist or discriminate agains: workmen who have filed claims. in violation

of TEX. REV. CIV. STAT. ANN. arts. 5196c and 5196d (Supp. 1975-1976). and

art. 8307c (Supp. 1975-1976).

—

us on application by both parties. We shall first consider the

points of error urged by the Foundation.

I. The Foundation’s Application

The Foundation contends that the Court of Civil Appeals

erred in holding that the trial court erroneously suppressed the

Board’s interrogatories. While denying that it intends to use

the information which it seeks for any illegal or discriminatory

purpose, the Foundation argues that the Act itself prohibits any

consideration of the motives or purposes for which the infor-

mation is sought in determining whether the information is public

and open to inspection.

The purpose of the Open Records Act is declared in Section |

as follows:

Pursuant to the fundamental philosophy of the Amer-

ican constitutional form of representative government

which holds to the principle that government is the servant

of the people, and not the master of them, it is hereby de-

clared to be the public policy of the State of Texas that

all persons are, unless otherwise expressly provided by law.

at all times entitled to full and complete information re-

garding the affairs of government and the official acts of

those who represent them as public officials and em-

ployees. The people, in delegating authority, do not give

their public servants the right to decide what is good for

the people to know and what is not good for them to know.

The people insist on remaining informed so that they may

retain control over the instruments they have created. To

that end, the provisions of this Act shall be liberally con-

strued with the view of carrying out the above declaration

of public policy.

Section 3 requires that a governmental body make all “public

information . . . available to the public during normal business

—_—*

hours. . . .”2 Section 3(a) defines “public information” as “[a]]Il

information collected, assembled, or maintained by governmen-

tal bodies pursuant to law or ordinance or in connection with

the transaction of official business . . ., with the following ex-

ceptions only: . . .”; there follow 16 exceptions, after which

Section 3(b) provides: “This section does not authorize with-

holding of information or limit the availability of records to the

public, except as specifically stated in this section.”

Section 5(a).denominates the chief administrative officer of

the governmental body as the “custodian” of its public records,

and Section 5(b) provides:

Neither the custodian nor his agent who controls the use

of public records shall make any inquiry of any person who

applies for inspection or copying of public records beyond

the purpose of establishing proper identification and the

public records being requested; .. .

Finally, Section 14 provides, in part:

(a) This Act does not prohibit any governmental body

from voluntarily making part or all of its records available

to the public, unless expressly prohibited by law; provided

that such records shall then be available to any person.

(b) This Act does not authorize the withholding of in-

formation or limit the availability of public records to the

public, except as expressly so provided.

(d) This Act shall be liberally construed in favor of the

granting of any request for information.

2 Emphasis supplied throughout unless otherwise noted.

—

The procedure for determining whether information is public

is set out in Sections 7 and 8 of the Act. Section 7 provides that

a governmental body which has received a request for informa-

tion may, within 10 days of the request, seek a decision from the

Attorney General to determine whether the information is cov-

ered by the Act. If the Attorney General determines that the

information is public and must be disclosed, but the governmen-

tal body still refuses to disclose it, Section 8 provides that “the

person requesting the information or the attorney general may

seek a writ of mandamus compelling the governmental body to

make the information available for public inspection.”

The Court of Civil Appeals has held that a court, relying upon

its equitable powers inherent in the remedy of mandamus, may

refuse to issue a writ of mandamus to compel disclosure even

though the information sought is public information and not

excluded by any exception, if the purpose for which the infor-

mation is sought is illegal or in violation of a policy of the State.

526 S.W.2d at 216.

It is true that, although mandamus is a legal remedy, it is gov-

erned, to some extent at least, by equitable principles. Callahan

v. Giles, 137 Tex. 571, 155 S.W.2d 793 (1941). In some instances

the equitable doctrine of clean hands has been invoked to deny

issuance of the writ. Westerman v. Mims, 111 Tex. 29.227 S.W.

178 (1921); City of Wink v. Griffith Amusement Co., 129 Tex.

40, 100 S.W.2d 695 (1936).’ But the extent of the court's equita-

ble powers under Section 8 of the Act must be viewed in light

of the legislative purpose and the statute’s overall scheme. Sec-

tion | declares that a// persons are entitled to complete informa-

tion; Section 3(b) declares that that section does not limit avail-

} See also Moore v. Rock Creek Oil Corp., 59 S.W.2d 815 (Tex. Comm'n

App. 1933. judgment adopted): Srate v. Gary, 163 Tex. 565, 359 S.W.2d 456, 473

(1962) (dissenting opinion): Crofts v. Court of Civil Appeals, 362 S.W.2d 101.

105 (Tex. 1962) (dissenting opinion); Universal Underwriters Ins. Co. v.

Ferguson, 471 S.W.2d 28, 31 (Tex. 1971) (dissenting opinion); Todd v. Helton,

495 S.W.2d 213, 216 (Tex. 1973) (concurring opinion).

— At —

ability “except as specifically stated” therein; Section 14(b) states

that the Act does not authorize the withholding of information

“except as expressly so provided”; Section 14(a) requires that,

if a governmental body does make any of its records available

to the public, “such records shall then be available to any per-

son”; finally, Section 5(b) prohibits the custodian from making

any inquiry of the requestor beyond establishing his proper iden-

tification. We think the Act itself makes clear that the motives of

the person requesting information are not to be considered in

determining whether the information must be disclosed. The

legislative intent of making public information available to any

person would be thwarted if a court were allowed to consider

the requestor’s motives even théugh the custodian may not do

so. We do not believe that the Legislature’s choice of manda-

mus as the remedy available to the requestor evinces legislative

intent that the court is free to exercise equitable discretion in

denying the writ where the exercise of such discretion would

contravene the overall scheme of the Act. In effect, the result

of the Court of Civil Appeals’ opinion would be to deny access

to information if the requestor cannot demonstrate a need

for the information which the court considers lawful or appro-

priate, even though it clearly is “public” and not covered by any

exception. Although we recognize that there is often much

4 Our interpretation is in accord with the At’ rney General's interpretation

of the Act. See TEX. ATT'Y. GEN. OP. NO. H-242 (1974); OPEN REC.

DEC. NOS. 37 (1974), S51 (1974) and 63 (1974).

’ The federal courts have encountered a similar problem in their interpre-

tation of the Freedom of Information Act, 5 U.S.C. § 552 (1967) as amended,

(Supp. 1975-1976). That Act requires that public records kept by federal

agencies be available to “any person.” and gives federal district courts “juris-

diction to enjoin the agency from withholding agency records and to order

the production of any agency records improperly withheld from the com-

plainant.” [(§ 552(a)(3)0]. Federal courts are divided whether they have

equitable discretion under the Act to refuse to grant injunctive relief when

disclosure would damage the public interest, even though the information

is public and not within any of the Act’s exceptions. See Rose v. Department

of the Air Force, 495 F.2d 261, 269 (fn. 23) (2nd Cir. 1974), affirmed on other

grounds, 44 U.S.L.W. 4503 (U.S. April 21, 1976); Getman v. NLRB, 146

U.S.App. D.C. 209, 450 F.2d 670 (1971); Wu v. National Endowment for

Humanities, 460 F.2d 1030 (Sth Cir. 1972), cert. denied, 410 U.S. 926 (1973).

potential for abuse of information in government records,® the

task of balancing the public’s right of access to government rec-

ords against potential abuses of the right has been made by the

Legislature; the court's task is to enforce the public’s right of

access given by the Act. Since the purposes of the requestor

are not relevant to a determination of whether the requested

information must be disclosed, the trial court was not in error

in suppressing defendants’ interrogatories.

I]. Application of Defendants

Industrial Accident Board et al.

By their application the defendants assert several arguments

contending that some or all of the information requested by

the Foundation is not required by the Aci to be disclosed. First,

defendants contend that the information is not within Section

3(a)’s definition of “public information” when read in light of

the legislative purpose enunciated in Section 1. Second, defen-

dants contend that the information is excepted from disclosure

by Section 3(a)(1) because it is deemed confidential under Board

Rule 9.040 which defendants contend has the force and effect of

a statute. Third, defendants assert that all claims filed with the

Board prior to June 14, 1973, the effective date of the Act, are

not covered thereby because those filing claims before that date

relied upon Board Rule 9.040 to assure that their claims would

be confidential. Fourth, defendants argue that the information

is confidential under the federal constitutional right of privacy.

Fifth, defendants argue that the information is deemed confi-

dential by a common-law right of privacy. Finally, defendants

urge that some of the compensation claims contain uniquely

personal information, disclosure of which would violate the

* The Foundation has vigorously argued that the purposes for which it seeks

the information are lawful and do not violate any public policy. We express

no opinion on this point.

—*

claimant's right to privacy, either constitutional or common-law.

We shall consider each of these arguments in order.

First, defendants assert that, although compensation claims

may arguably come within the Act's definition of public infor-

mation — “fa]ll information collected, assembled, or main-

tained by governmental bodies pursuant to law or ordinance or

in connection with the transaction of official business” — the

definition should not be read so broadly as to include the iden-

tity of individual claimants in light of the legislative purpose

announced in Section |. Defendants point out that the language

of Section | declares it the policy of the Act to make available

“full and complete information regarding the affairs of govern-

ment and the official acts of those who represent them as public

officials and employees.” Defendants contend that the names

of individual claimants do not constitute “affairs of government”

or “official acts” of public officials, and therefore their disclosure

would not further the legislative purpose announced in Sec-

tion |. Any other construction, defendants argue, would lead

to the inconsistent result of requiring disclosure of the affairs

of private citizens under an act intended to require disclosure

of the affairs and workings of their government.

Defendants’ argument is not without merit. Especially since

the rapid expansion of government in recent years, many gov-

ernment records necessarily contain information relating to

and identifying individual citizens and their activities. While

the recent expansion of government has accented the need to

assure access by private citizens to government records as an

assurance that the people may remain informed about the activ-

ities of those who represent them,’ the tremendous increase

’ At least 42 states have enacted laws giving some degree of. access to

government records, many in the last three years. See Project, Government

Information and the Rights of Citizens, 73 Mich. L. Rev. 971 (1975) at page

1163, footnote 1169.

— A-10 --

in the amount of information obtained and retained by the gov-

ernment has given rise to concern about the potential abuses

which unlimited access to this information may foster.* The

public’s right to be informed about the affairs of government

may thus conflict with the right of the individual to control

access to information concerning his own affairs.? The balance

between these two competing interests has not yet been struck

with clarity, and the nature and extent of each interest is yet to

be satisfactorily determined. We believe, however, that, except

in unusual circumstances, the task of balancing these interests

must be left to the Legislature. In the Open Records Act the

Legislature has addressed the problem of access to government

records. Although some provision has been made for safe-

guarding the privacy of the individual (see Section 3(a)(1), (2),

(9), and (10) ), the Act makes clear that it musi “be liberally con-

strued in favor of the granting of any request for information.”

Section 14(d). Moreover, the disclosure of individual names

in government records may in some instances be essential to the

expressed purpose of effectively allowing the public to police the

actions of their government. Viewed in light of the statute as

a whole. we are convinced that the definition of “public

information” in Section 3(a) encompasses the information

* Congress has recently enacted the Privacy Act of 1974.5 U.S.C.A § 522a

(Supp. 1975-1976). to safeguard individual privacy interests by restricting

information practices of tederal agencies. Two states have recently passed

privacy acts. MINN. STAT. ANN. §$§ 15.162-168 (Supp. 1975). and Ch. 194.

$§ 1-12. 1975 Laws of Utah 870. In addition, the constitutions of California

and Alaska contain express provisions protecting the privacy of individuals.

which have been interpreted to restrict government access to or disclosure of

private information to some degree. ALASKA CONST. art. I. § 22; CAL.

CONST. art. 1, § 1. See White v. Davjs, 13 Cal.3d 757, 533 P.2d 222, 120 Cal.

Rptr. 94 (1975). Ravin v. State. 537 P.2d 494 (Alaska 1975).

* See Note. /nvasion of Privacy and the Freedom of Information Act:

Getman v. NLRB, 40 Geo. Wash. L.Rev.527 (1972): Project. supra, 73

Mich. L.Rev.971 (1975): Records, Computers. and the Rights of Citizens.

Report of the Secretary's Advisory Committee on automated Personal! Data

systems, U.S. Dept. of H.E.W. (1973); Privacy and Information Systems in

Texas, Report of the Senate Jurisprudence Committee of the 64th Texas

Legislature (1975).

ee ee

— A-ll —

sought by the Foundation, including the name of the claimant.

The information must therefore be disclosed unless it is ex-

cluded by one of the specific exceptions of Section 3(a).

Defendants next contend that Board Rule 9.040 has the effect

of excepting the requested information from mandatory dis-

closure under the Act. Rule 9.040,'° which was promulgated

by the Board in 1961 pursuant to its general rule — making

authority,'! allows access to information ona claimant only to the

claimant or his attorney, the insurer, the employer, or third party

litigants, and only if there is an “gpen” claim before the Board or

a court at the time the information is requested. Defendants

argue that this rule has the force of statute, and that the informa-

tion is therefore excepted from the Act by Section 3(a)(1), which

excludes information deemed confidential by statute.

Many statutes make various records kept by state agencies

confidential. See, e.g, TEX. REV. CIV. STAT. ANN. art.

695j-1, § 10 (Suppl. 1975-1976); art. 5547-12a (Supp. 1975-1976);

and art. 4445c, § 4 (Supp. 1974). It is clear that the records

covered by these statutes fall within Section 3(a)(1)’s exception

for records made confidential by statute. No such statute ap-

” Rule 9.040 reads as follows:

“As a prerequisite for approval of a request for a record check or for

the furnishing of information on a claimant, there must be a workmen's

compensation claim for the named claimant open or pending before this

Board or on appeal to a court of compentent jurisdiction from the

Board at the time the record search request or request for information

is presented to this Board. The first, middle and last name of the claimant,

age and social security number, and if possible, dates of injury and the

name of prior employers must be given in request for information. The —

Board will furnish the requested information or a record check only to

the following: (1) the claimant: (2) the attorney for the claimant; (3) the

carrier, (4) the employer at the time of the current injury: (5) third party

litigants. Fees and charges for record requests may be obtained from

the Industrial Accident Board.” (Promulgated 1961, revised 1974.)

'" TEX. REV. CIV. STAT. ANN. art. 8307 § 4 (1967).

— fe —

pears, however, in the Workmen’s Compensation Act.'? While

a rule may have the force and effect of a statute in other contexts,

we do not believe that a governmental agency may bring its

information within exception 3(a)(1) by the promulgation of

a rule. To imply such authority merely from general rule-making

powers would be to allow the agency to circumvent the very

purpose of the Open Records Act.!}? Absent a more specific

grant of authority from the Legislature to make such a rule,'4

the rule must yield to the statute.

Defendants argue that, even if the Board has‘no power to

restrict access to records which are required to be disclosed by

the Act, the Board certainly had such power prior to the Act's

effective date. Since those filing claims prior to the Act did so

while the Rule was in effect, defendants argue that all informa-

tion concerning claims filed prior to the Act's effective date

should remain confidential. We disagree.

First, it is clear that the Act is intended to apply to all records

kept by governmental bodies, whether acquired before or after

the Act’s effective date. No exception is made for records

which were considered confidential prior to June 14, 1973.

Second, we do not believe that information should be excepted

from disclosure merely because the individual furnishing such

information did so with the expectation that access to the in-

> A bill specifically excepting claims filed with the Board from the Open

Records Act was introduced in the 64th Legislative Session, the bill, S.B. 46, was

reported favorably by the Senate Jurisprudence Committee and was passed to

engrossment on the floor of the Senate: but the bill was never presented for final

passage by the Senate, and it died at the end of the session.

'’ The Attorney General's interpretation of Section a)(1) is in accord with

our conclusion. See OPEN REC. DEC. NOS. 29 (1974), 46 (1974) and 95

(1974).

4 See. e.g.. TEX. REV. CIV. STAT. ANN. art. 5221 b-%e) (1971). giving the

Texas Employment Commission authority to promulgate rules of disclosure.

and ATTY. GEN. OP. NO. H-626 (1975), which held that the Commission's

rules do not conflict with the Open Records Act.

— A-13 —

formation would be restricted. The Legislature has not, by

determining that government information formerly kept con-

fidential should be disclosed, impaired any vested right of a

claimant to the confidentiality of the information.'® Unless

there is such an impingement upon a vested right, the Legisla-

ture may require disclosure of information even though it was

deemed confidential by an agency rule prior to the effective

date of the Act.'® We therefore conclude that the Board may

not withhold information required to be disclosed by the Act,

whether acquired prior to the Act’s effective date or thereafter,

based upon its own Rule 9.040.

We next turn to defendants’ argument that the requested

information is protected from disclosure by a constitutional

right of privacy. Section 3(a)(1) excepts from disclosure infor-

mation deemed confidential by constitutional law. Defendants

contend that the right of privacy recently recognized by the

United States Supreme Court as emanating from “the Fourteenth

Amendment's concept of personal liberty and restrictions upon

state action . . .”'’ extends to all the information in its claims

records and prohibits disclosure of that information to the public.

'S Defendants cite OPEN REC. DEC. NO. 55A(1975), in which the Attorney

General held that certain evaluative material in the personnel file of a university

faculty member was not required to be disclosed under the Act because the

information was given in exchange for an express promise of confidentiality

made prior to the effective date of the Act. While we express no opinion as to the

correctness of this ruling, we note that the circumstances are distinguishable

from the case before us, because no express contract of confidentiality was here

made by the Board in order to induce claimants to provide the information

sought by the Foundation.

Appeals, we do not base our result on any distinction between the Board's

implied rule-making authority and the implied rule-making power of other state

agencies.

" Roe v. Wade, 410 U.S. 113, 153 (1973).

— fis —

The Foundation asserts by counterpoint that the defendants

have no standing to assert this argument, contending that a state

agency cannot be heard to assert the constitutional rights

of individual claimants. Whatever merit the Foundation’s

argument might have absent the Act, it is clear that the Legis-

lature has, in effect, granted standing to a governmental unit

to assert that its records are protected by a constitutional right

of privacy. The governmental unit may request an Attorney

General’s opinion to determine whether requested information

is excepted by Section 3(a)(l), thus effectively raising the

constitutional issue. Certainly the agency is not foreclosed, as

defendant in a suit to force disclosure. from challenging the

Attorney General's conclusion that information is not excluded

by the first exception. Furthermore, under Section 10(b), one

who discloses information deemed confidential may be subject

to fine or imprisonment. We hold that defendants have standing

to assert the constitutional right of privacy of claimants whose

files are in their custody. We must determine, therefore, whether

any of the information requested by the Foundation is protected

by the constitutional right of privacy. The United States Supreme

Court reviewed its earlier decisions in this area in Roe v. Wade.

410 U.S. 113, 182-53 (1973):

The Constitution does not explicitly mention any right

of privacy. Ina line of decisions, however, going back per-

haps as far as Union Pacific R. Co. v. Botsford, 141 U.S.

250, 251 (1891), the Court has recognized that a right of

perso ial privacy, does exist under the Constitution. In

varying contexts, the Court or individual Justices have,

indeed, found at least the roots of that right in the First

Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969);

in the Fourth and Fifth Amendments, Terry v. Ohio, 392

U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347,

350 (1967), Bovd v. United States. 116 U.S. 616 (1886), see

Olmstead v. United States, 277 U.S. 438, 478 (1928) (Bran-

deis, J., dissenting); in the penumbras of the Bill of Rights,

Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth

Amendment, id., at 486 (Goldberg, J., concurring); or in

en ne J

— A-1S —

the concept of liberty guaranteed by the first section of

the Fourteenth Amendment, see Meyer v. Nebraska, 262

U.S. 390, 399 (1923). These decisions make it clear that

only personal rights that can be deemed “fundamental”

or “implicit in the concept of ordered liberty,” Palko v.

Connecticut, 302 U.S. 319, 325 (1937), are included in this

guarantee of personal privacy. They also make it clear that

the right has some extension to activities relating to mar-

riage, Loving v. Virginia, 388 U.S. 1, 12 (1967), procrea-

tion, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942);

contraception, Eisenstadt v. Baird, 405 U.S., at 453-454;

id., at 460, 463-465 (WHITE, J., concurring in result);

family relationships, Prince v. Massachusetts, 321 U.S. 158,

166 (1944); and child rearing and education, Pierce v.

Society of Sisters, 268 U.S. 510, 535 (1925), Mever v.

Nebraska, supra.

It is apparent from the above that the term “right of privacy”

is actually a generic term encompassing various rights recognized

by the Court to be “inherent in the concept of ordered liberty.”

To date the Court has not delineated any comprehensive defini-

tion of the right. It is apparent, however, that the fundamental

rights thus far recognized by the Court as deserving protection

from governmental interference have been limited to intimate

personal relationships or activities, freedoms of the individual

to make fundamental choices involving himself, his family, and

his relationships with others. It is also apparent that the right

of privacy is primarily a restraint upon unwarranted govern-

mental interference or intrusion into those areas deemed to

be within the protected “zones of privacy.”

Several commentators have suggested that the right of

privacy protected by the U.S. Constitution actually has two

meanings: first, the ability of individuals to determine for

themselves whether to undergo certain experiences or to per-

form certain acts — autonomy, and second, the ability of

individuals “to determine ‘or themselves when, how, and to

what extent information about them is communicated to

— A-16 —

others”'* — the right to control information, or disclosural

privacy. The Supreme Court has not distinguished between

these two areas of privacy, but the distinction is useful in dis-

cussing the concept, especially in light of the problem now before

us. Most privacy cases decided by the Supreme Court to date

have concerned autonomy. Little has been said of the consti-

tutional dimensions of disclosural privacy, which is the right

asserted by defendants here. We believe, nevertheless, that effec-

tive protection of the fundamental “zones of privacy” thus far

outlined by the Supreme Court necessarily implies a con-

comitant right to prevent unlimited disclosure of information

held by the government which, although collected pursuant

to a valid governmental objective, pertains to activities and

experiences within those zones of privacy. The individual does

not forfeit all right to control access to intimate facts concern-

ing his personal life merely because the State has a legitimate

interest in obtaining that information. Just as the State’s intru-

sion into the individual's zones of privacy must be carefully

limited, so must the State's right to reveal private information

be closely scrutinized as well.'®

It is also clear, however, that not every publication of intimate

or embarrassing information about an individual constitutes

an invasion of a constitutionally protected zone of privacy. In

the case of Paul v. Davis, 44 U.S.L.W. 4337 (U.S. March 23.

1976), recently decided by the U.S. Supreme Court, plaintiff's

name and photograph were included in a flyer of “active shop-

* A. Westin, Privacy and Freedom, p. 7 (1967). See also Beardsley, Privaci

Autonomy and Selective Disclosure. in Privac, $6 (3. Pennock & J. Chapman

eds.. 1971): Gress. The Concept of Privacy. 42 N.Y.U. 1 Rev. 34 (1967): Note.

Roe and Paris: Does Privacy Have a Principle. 26 Stan. L. Rev. 1161 (1974).

'* At least two United States Supreme Court cases have considered the

confidentiality accorded information kept by the State to be relevant in

determining whether the State could constitutionally obtain that information

from its citizens: Shelton v. Tucker, 364 U.S. 479, 486( 1960), and Law Srudents

Civil Rights Research Council v. Wadmond. 401 US. 154. 157 (1971) (see

footnote 4). See also California Bankers Ass'n v. Shult=, 416 US. 21 (1974). Roe

v. Ingraham, 480 F.2d 102 (2nd Cir. 1973), on remand, 403 F. Supp. 931

(S.D.N_Y. 1975). review granted sub nom. Whatlen v. Roe. 44US.L.W. 346!

(U.S. 1976), Schulman v. New York City Health And Hospuals Corp 44 App.

Div. 2d 482, 355 N_Y.S.2d 781 (1974): and Ciry of Carme!-by-the-Sea v. Young. 2

Cal.3d 259, 466 P.2d 225. 85 Cal. Rptr. | (1970).

— &4? -

lifters” distributed to local merchants by the police chief of

Louisville, Kentucky, after plaintiff had been arrested ona

shoplifting charge. The charge was subsequently dismissed,

and plaintiff sued the police chief under 42 U.S.C. § 1983,

alleging, inter alia, that the police chief had invaded his con-

stitutional right of privacy while acting under color of State law.

The Court denied that plaintiff had stated a cause of action:

While there is no “right of privacy” found in any spe-

cific guarantee of the Constitution, the Court has recog-

nized that “zones of privacy” may be created by more

specific constitutional gwarantees and thereby impose

limits upon government power. See Roe v. Wade, 410 U.S.

113, 152-153 (1973). Respondent's case, however, comes

within none of these areas. He does not seek to suppress

evidence seized in the course of an unreasonable search.

See Katz v. United States, 389 U.S. 347, 351 (1967), Terry

v. Ohio. 392 U.S. 1, 8-9 (1968). And our other “right of

privacy” cases, while defying categorical description, deal

with substantive aspects of the Fourteenth Amendment.

In Roe the Court pointed out that the personal rights

found in this guarantee of personal privacy must be limited

to those which are “fundamental” or “implicit in the con-

cept of ordered liberty” as described in Palko v. Connecti-

cut, 301 U.S. 319, 325 (1937). The activities detailed as

being within this definition were ones very different from

that for which respondent claims constitutional protection

— matters relating to marriage, procreation, contracep-

tion, family relationships, and child rearing and education.

In these areas it has been held that there are limitations

on the States’ power to substantively regulate conduct.

Respondent's claim is far afield from this line of deci-

sions. He claims constitutional protection against the

disclosure of the fact of his arrest on a shoplifting charge.

His claim is based not upon any challenge to the State's

— A-18 —

ability to restrict his freedom of action in a sphere con-

tended to be “private,” but instead on a claim that the

State may not publicize a record of an official act such as

an arrest. None of our substantive privacy decisions hold

this or anything like this, and we decline to enlarge them

in this manner.

Paul v. Davis, 44 U.S.L.W. at 4343 (U.S. March 23, 1976).

See also Laird v. Tatum, 408 U.S. 1(1972); Rosenherg v. Martin.

478 F.2d 520 (2nd Cir. 1973), cert. denied, 414 U.S. 872 (1973):

Thom v. New York Stock Exchange, 306 F.Supp. 1002(S.D.N_Y.

1969), affirmed sub nom. Miller v. NYSE, 425 F.2d 1074 (2nd

Cir. 1970), cert. denied, 398 U.S. 905 (1970); Lamont v. Com-

missioner of Motor Vehicles, 269 F.Supp. 880 (S.D.N.Y. 1967),

affirmed, 386 F.2d 449 (2nd Cir. 1967), cert. denied, 391 U.S. 915

(1968); and Fifth Avenue Peace Parade Committee v. Gray, 480

F.2d 326 (2nd Cir. 1973), cert. denied, 415 U.S. 948 (1974).

Compare York v. Story, 324 F.2d 450 (9th Cir. 1963). cert.

denied, 376 U.S. 939 (1964); Merriken v. Cressman, 364 F.Supp.

913 (E.D.Pa. 1973).

Thus, the State’s right to make available for public inspec-

tion information pertaining to an individual does not conflict

with the individual's constitutional right of privacy unless the

State’s action restricts his freedom in a sphere recognized to be

within a zone of privacy protected by the Constitution. We turn

now to an examination of the information sought by the Foun-

dation to determine whether that information is within a zone

of privacy. The data requested identifies the claimant, the

nature of his injuries, his employer and his attorney. The infor-

mation normally does not concern matter relating to marriage.

procreation, contraception, family relationships, or child rearing

and education, nor would its publication infringe upon a claim-

ant’s right of free association. Even though a workman's knowl-

edge that information concerning his claim will be available

for public inspection may deter him from exercising his statu-

tory right to file a claim, the general availability of such infor-

— A-19 —

mation would not adversely affect any right thus far recognized

to be within a constitutionally protected zone of privacy. We

therefore hold that the information requested by the Founda-

tion is not excepted by Section 3(a)(1) as information deemed

confidential by constitutional law.

Defendants next contend that the requested information is

“deemed confidential . . . by judicial decision” under Section

3(aX(1). Defendants assert that by this provision the Legislature

intended to delegate to the courts a duty to determine what

information should be excepted from disclosure as confidential

by balancing in each case the interest in privacy against the

interest in disclosure, thus creating a common-law privacy

doctrine which would except the information involved “by

judicial decision.” As authority for this proposition defendants

cite the Freedom of Information Act. 5 U.S.C. § 552 (1967), as

amended, (Supp. 1975-1976), which is in many ways similar

to Texas’ Open Records Act. Section 552(b) of the Federal

Act sets out the matters which are excepted from application

of the Act. Exception 6 provides that the Act does not apply

to “personnel and medical files and similar files the disclosure

of which would constitute a clearly unwarranted invasion of

personal privacy, .. .” Federal courts have interpreted the term

“similar files” broadly, to include any files which “contain ‘inti-

mate details’ of a ‘highly personal nature.’” Robles v. Environ-

mental Protection Agency, 484 F.2d 843, 845 (4th Cir. 1973).

The Supreme Court has recently construed this exemption to

mean that Congress intended the courts to balance “the indi-

vidual’s right of privacy against the preservation of the basic

purpose of the Freedom of Information Act ‘to open agency

action to the light of public scrutiny."” Rose v. Department of

the Air Force, 44 U.S.L.W. 4503, 4509 (U.S April 21, 1976).

See also Getman v. National Labor Relations Board, 450 F.2d

—

670, 677 (D.C. Cir. 1971); Wine Hobby USA, Inc. v. Internal

Revenue Service, 502 F.2d 133, 136 (3rd Cir. 1974).2° Defen-

dants urge us to apply a similar balancing test to determine

whether information is “confidential . . . by judicial decision”

under the Open Records Act.

We do not believe that the interpretation proposed by de-

fendants is reasonable. Although the Open Records Act is

similar in many ways to the Freedem of Information Act, our

State law contains no exception comparable to exception 6 of

the federal act. Section 3(a)(2) of the Open Records Act does

except “information in personnel files, the disclosure of which

would constitute a clearly unwarranted invasion of personal

privacy.” There is no such exception, however, for medica!

files, or for files “similar” to medical or personnel files, as is

found in exception 6 of the federal act. Absent 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 in-

formation 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.

Defendants next contend that the information sought by

the Foundation is confidential by judicial decision by reason

of this Court's opinion in Billings v. Atkinson, 489 S.W.2d 858

(Tex. 1973). In that decision we recognized that “an unwar-

ranted invasion of the right of privacy constitutes a legal injury

for which a remedy will be granted.” 489 S.W.2d at 860. We

** For a more complete analysis of this exemption, see Project, supra, 73

Mich. L. Rev. 971, 1078-1085 (1975).

~ A-2l —

there upheld a jury verdict awarding Mr. Billings damages for

the unauthorized installation of a wiretap device on his telephone

by Mr. Atkinson. We stated, at 489 S.W.2d at 859:

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

§ |. A judicially approved definition of the right of privacy

is that it is the right to be free from the unwarranted appro-

priation or exploitation of one’s personality, the publiciz-

ing of one’s private affairs with which the public has no

legitimate concern, or the wrongful intrusion into one’s

private activities in such’ manner as to outrage or cause

mental suffering, shame or humiliation to a person of

ordinary sensibilities. 62 Am.Jur.2d, Privacy § |, p. 677,

and cases cited. -.

The above statement of the Court reveals that the tort “in-

vasion 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).

- s—

The interest recognized as deserving protection in Billings

was the first listed above, freedom from unwarranted intrusion.

The interest asserted by defendants on behalf of claimants most

closely resembles the interest defined by Prosser as freedom from

public disclosure of embarrassing private facts. Defendants

contend that making the requested information available for

public inspection would constitute public disclosure of private

facts about individual claimants. and that the information must

therefore be confidential by reason of the common-law right

of the claimants to recover damages for the wrongful publica-

tion of the information.

We recognize 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 pre-

cise 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 him-

self, must show (1) that publicity was given to matters concern-

ing 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 con-

cern. See W. Prosser, Law of Torts § 117, p. 809 (4th ed. 1971)

and cases there cited.?! Defendants assert that, if a governmental

unit’s action in making its records available to the general public

would be an invasion of an individual's freedom from the pub-

licizing of his private affairs, then the information in those

2! The American Law Institute has recently adopted the following definition

of the tort, in Restatement (Second) of Torts, §652D(Tent. Draft No. 22, 1976):

One who gives publicity to a matter concerning the private life of

another is subject to liability to the other for invasion of his privacy if the

matter publicized is a kind which

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

—.

records should be deemed confidential by judicial decision under

Section 3(aX(1) of the Act. We agree. Webster’s Third Inter-

national Dictionary defines “confidential” as “known only to a

limited few: not publicly disseminated: PRIVATE, SECRET.”

These are precisely the characteristics which information pro-

tected by this branch of the tort invasion of privacy must have.

And, we believe that it is this type of information which the

Legislature intended to exempt from mandatory disclosure

under Section 3(a)(1) of the Act.

We must decide, therefore, whether any of the information

requested by the Foundation is “private” within the meaning of

the tort law, and whether the Board’s action in making the in-

formation available to the public would constitute a wrongful

“publicizing” of such information and thus an invasion of a

claimant’s right of privacy.

The first requirement for wrongful publication of private

information is that the information contain 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. Defendant Jerry Belcher, the Executive

Director of the Industrial Accident Board and custodian of its

records, filed an affidavit in the trial court in opposition to the

Foundation’s motion for summary judgment, in which he al-

leged that many of the claims filed with the Board contain

matters of extreme privacy which, if released, would cause

extreme embarrassment to the injured claimant. Belcher cited

examples of such claimants, including a claim for injuries arising

from a sexual assault of a female clerk following an armed

robbery; a claim on behalf of illegitimate children for benefits

following their father’s death; a teacher’s claim for expenses

of a pregnancy resulting from the failure of a contraceptive

device; claims for psychiatric treatment of mental disorders

following work-related injuries; claims for injuries to sexual

organs, and for injuries stemming from an attempted suicide;

- 4 —

and claims of disability caused by physical or mental abuse by

co-employees or supervisors. Belcher alleged that

[m]Jany of these claims by their nature and the wording

of the claim involve highly private matters which, if divulged

to the public-at-large. would result in the violation of in-

dividual claimant's and others right of privacy.

The claims referred to by Mr. Belcher are not in the record

betore us. Nevertheless, if there are in fact claims containing

such information. as Mr. Belcher has alleged (and in reviewing

the trial court’s summary judgment we must accept as true all

allegations of the opposing party), we are satisfied that at

least some of these claims are of such a nature that their publica-

tion would be highly offensive to a reasonable person. This

criterion is therefore satisfied at least as to some information

contained in claims in the custody of Mr. Belcher.

Invasion of the privacy interest protected by this branch

of the tort also requires that publicity be given to the private

affairs of the individual. Would making claim files available

for public inspection constitute such publicity? It is generally

agreed that the publicity requirement of this tort is not synony-

mous with the publication requirement of the law of defama-

tion, wherein publication to one other is sufficient to constitute

defamation. “Publicity” requires communication to more than

a small group of persons; the matter must be communicated to

the public at large, such that the matter becomes one of public

knowledge.” It may be argued that the mere placing of private

matter in a record available for public inspection does not “give

publicity” to such matter, since the matter is not thereby com-

municated to anyone, much less to the public at large. No

publicity would occur, according to this argument, unless a

citizen examined the public record and communicated the in-

formation therein to a large number of people. It would neces-

2 See W. Prosser. Law of Torts § 117. at p. 810. See also proposed comment

a. to Rest. 2d of Torts § 652D (Tent. Draft No. 22. 1976).

«- A —

sarily follow that no privacy interest is invaded merely by mak-

ing private information available for public inspection.

The requirement of publicity, however, must be considered

in light of the people’s right to publicize information which

is a matter of public record without fear of sanctions imposed

by the State. Once information is made a matter of public rec-

ord, the protection accorded freedom of speech and press by the

First amendment may prohibit recovery for injuries caused by

any further disclosure of and publicity given to such informa-

tion, at least if the information is at all newsworthy. In Cox

Broadcasting Co. v. Cohn, 420 U.S. 469 (1975), the Supreme

Court held that the First and Fourteenth Amendments prohibit

the State from imposing sanctions for the publication of infor-

mation contained in official court records available for public

inspection. The Court stated, at 420 U.S. 495-496:

By placing the information in the public domain on

official court records, the State must be presumed to have

concluded that the public interest was thereby being served.

Public records by their very nature are of interest to those

concerned with the administration of government, and a

public benefit is performed by the reporting of the true

contents of the records by the media. The freedom of the

press to publish that information appears to us to be of

critical importance to our type of government in which

the citizenry is the final judge of the proper conduct of

public business. In preserving that form of government

the First and Fourteenth Amendments command nothing

less than that the States may not impose sanctions on

the publication of truthful information contained in offi-

cial court records open to public inspection.

— A-26 —

. . . If there are privacy interests to be protected in

judicial proceedings, the States must respond by means

which avoid public documentation or other exposure of

private information. Their political institutions must

weigh the interests in privacy with the interests of the

public to know and of the press to publish.

The Court thus held that the State may not protect an indi-

vidual’s privacy interests by recognizing a cause of action in

tort for giving publicity to highly private facts, if those facts are

a matter of public record.

It therefore appears that, if the State wishes to protect a

citizen’s privacy interest in matters recorded in documents kept

by the State, it must do so by restricting the availability of those

documents to the public rather than by imposing sanctions

on those who would publicize such matters to which they have a

right of access. In order to protect the individual's privacy

interest in information compiled in government records, it must

be assumed that for purposes of Section 3(a)(1) of the Act, when

a governmental unit makes information in its files available

for public inspection, the information is sufficiently “publicized”

to invoke the protection accorded such matters by the tort law.

To hold otherwise would be to deny an individual any protecta-

ble privacy interest in private information disclosed to a govern-

mental unit, if such information would otherwise be “public

information.”

The last requirement for an actionable invasion of privacy

is that the information publicized not be of legitimate concern

to the public. This requirement is necessarily one which can

only be considered in the context of each particular case, con-

sidering the nature of the information and the public’s legitimate

interest in its disclosure. While the Open Records Act has

declared the policy of this State to be that all “public informa-

tion” kept by government is of legitimate public concern, the

Legislature has also recognized in Section 3(a)(1) that, in some

instances, the individual’s interest in confidentiality may out-

— Ail —

weigh the public’s interest in disclosure. There may be circum-

stances in which the special nature of the information makes

it of legitimate concern to the public even though the informa-

tion is of a highly private and embarrassing nature. In general,

however, the public will have no legitimate interest in such

highly private facts about private citizens. Unless, therefore.

the person requesting information of such a nature from the

governmental unit can show special circumstances which make

such private facts a matter of legitimate public concern, we

believe that the information should be excepted from the man-

datory disclosure provisions of the Act as information deemed

confidential by a common-law right of privacy under Section

3(a)(1). We should make clears that the particular interest of the

requestor, and the purposes for which he seeks the information,

are not to be considered in determining whether the matter

requested is of legitimate concern to the public, except insofar

as the requestor’s interest in the information is the same as that

of the public at large. As we have stated above, the Act makes

clear that the motives of the individual requestor are not rele-

vant to the determination of. whether the matter requested is

“public information.”

The Foundation contends that, by disclosing the facts of their

claim to the Board, claimants have waived or forfeited any

right of privacy which they might have had in such information.

We disagree. We stated above that an individual does not forfeit

all right to maintain the confidentiality of his personal affairs

merely because he has disclosed facts about those affairs to a

unit of government. Although voluntary disclosure of private

information would generally constitute a waiver of the indi-

vidual’s privacy interest in that information, the voluntariness

of the disclosure should be viewed in light of the circumstances

under which the disclosure is made. Much information is

diclosed to the government as a prerequisite to the receipt of

government benefits which are of such importance to the

recipient that the disclosure of private information incident

thereto may hardly be considered voluntary. We cannot say

that an injured workman impliedly consents to the govern-

— A-28 —

ment’s publication of private information about his injury merely

by filing his claim for compensation with the Board; nor do

we believe that the acceptance of compensation benefits should

necessarily be contingent upon a waiver of the claimant's rights

to assert the privacy of such information, absent some expressed

legislative intent to that effect. We decline to hold that claimants

have waived any legally protected right of privacy in informa-

tion contained in their claim files by filing them with the Board.

To summarize: information contained in workmen's com-

pensation claim files is excepted from mandatory disclosure

under Section 3(a)(!) as information deemed confidential by

law if (1) the information contains highly intimate or embar-

rassing facts the publication of which would be highly objec-

tionable to a reasonable person, and (2) the information is not of

legitimate concern to the public. If the information meets the

first test. it will be mresumed that the information is not of

legitimate public concern unless the requestor can show that,

under the particular circumstances of the case. the public has

a legitimate interest in the information notwithstanding its

private nature.

Since it appears that the trial court has not considered the

individual files which defendants allege are private, and since

it clearly appears that some of these files may contain personal

information the publication of which would be highly objec-

tionable to a reasonable person, it follows that the trial court’s

summary judgment for the Foundation was improper. We there-

fore remand the case to the trial court for its determination,

in light of this opinion, whether any of the information should

be withheld from disclosure because confidential. For the

guidance of the trial court, we consider it appropriate to make

some further observations concerning the information requested

and the procedure for its review.

— A-29 —

The Foundation has requested the name of each claimant,

the nature of his injuries, and the names of his employer and

his attorney. It is evident that any highly personal information

in these files will in most cases refer to the nature of the injury

sustained. If the nature of a particular claim is held to be con-

fidential, only that information need be withheld from dis-

closure. As we have already stated, there is nothing intimate

or embarrassing about the fact, in and of itself, that an indivi-

dua! has filed a claim for benefits. The claimant’s name may

therefore normally be disclosed, as may other information in the

claimant’s file which does not itself reveal private facts, even

though information concerning the nature of his injury is with-

held. ;

In reviewing the information which defendants assert is exempt

from disclosure, the trial court should follow the same pro-

cedure which the Act dictates for submitting claimed exemp-

tions to the Attorney General. Section 7(b) provides that “[{t]he

specific information requested shall be supplied to the attorney

general but shall not be disclosed until a final determination

has been made.” Similarly, the claims containing allegedly pri-

vate information should be supplied to the trial court for an in

camera inspection and determination whether and to what extent

information should be deleted from those files. We believe that

this procedure will best protect the privacy interests of the in-

dividual, and at the same time will effectively protect the public’s

right to inspect public records.

We recognize that the individual claimant's identity is the

primary item of information which the Board wishes to keep

confidential under Section 3(a)(1) of the Act, because of its alle-

gation that the Foundation intends to use the information to

discriminate against claimants. Our conclusion, however, is

that the Act prohibits consideration of the motives of the re-

questing party in determining whether information must be

disclosed. The sole criteria for determining whether informa-

—. 6S

tion is exempt from disclosure as “confidential by judicial deci-

sion” are whether the information is of legitimate public concern

and whether its publication would be highly objectionable to

a reasonable person. If the Legislature intended that other

criteria be considered in deciding whether information is open

to inspection — if it desires to change the wording of the statute

— it will have an early opportunity to do so at the convening

of the next legislative session. The duty of this Court is to

enforce the legislative intent as written.

We also recognize the enormity of the task which a case-by-

case review of these workmen’s compensation files may entail.

We believe, nevertheless, that the effective protection of the

individual's right of privacy, and the effective application of

the policy of openness of government records mandated by the

Open Records Act, necessitate the result which we have reached.

The individual’s right to maintain some degree of privacy

in the affairs of his personal life must not be forgotten in the

effort to maintain the openness of governmental activities.

Even in the complex and closely regulated bureaucracy of

today’s society, the individual's right of privacy and the people's

right to be informed may exist, if not in harmony, at least

w‘thout irreconcilable conflict.

III. Means and Costs of Providing

the Requested Information

One of the grounds alleged by defendants for denying the

Foundation the information which it seeks was that, because of

the magnitude of the information requested, it would be virtually

impossible to furnish the information without hiring addi-

tional personnel and disrupting the activities of the Board.

In response to the Foundation’s suggestion that a direct tie-in

— A-31 —

to the Board’s computerized data processing system might be

the most feasible way to provide the information, the Board’s

data-processing manager stated by affidavit that such a pro-

cedure “would cause a complete breakdown of our already

overloaded agency workload; it would also require the complete

restructuring of our data processing system and the hiring

of personnel to supply the information requested” by the Foun-

dation. In response to this problem the Court of Civil Appeals

stated, at 526 S.W.2d 220-221:

While this is properly a matter for determination of the

State Board of Control, under Sec. 9 of the Act, the pos-

sibility of abuse of computer privileges is one addressed

to the sound discretion of the trial court. In the law review

article entitled “Privacy and the Computer,” V. Country-

man, 49 TEX. L. REV. 837, 863 (1971), the author points

to some dire consequences which may flow from the in-

vasion of privacy by entry into a computer system. We

are of the opinion that such consequences may be appro-

priate for consideration by the trial court in the exercise

of discretion in the award or denial of the writ of manda-

mus upon the trial which we have ordered.

Section 9(b) of the Act provides:

Charges made for access to public records comprised

in any form other than up to standard sized pages or in

computer record banks, microfilm records, or other

similar record keeping systems, shali be set upon consul-

tation between the custodian of the records and the State

Board of Control, giving due consideration to the expenses

involved in providing the public records making every effort

to match the charges with the actual cost of providing the

records.

° A-32 -

It is our opinion that the Act does not allow either the

custodian of records or a court to consider the cost or method

of supplying requested information in determining whether

such information should be disclosed. The least expensive

method of supplying the information requested by the Foun-

dation must be determined by the Board of Control and the

custodian of the records in accordance with the guidelines set

out by Section 9. Ihe means of access to information in govern-

ment records may be controlled by the determination of what

records must be disclosed, insofar as the procedure must

adequately protect information deemed confidential from

improper disclosure. If a direct computer tie-in could not

be effectuated without giving the Foundation access to infor-

mation to which it is not entitled, then of course the procedure

would not be acceptable. The least expensive method of pro-

viding the requested information, consonant with the trial

court’s final determination as to its confidentiality. should be

left to the determination of the custodian and the Board of

Control.

We are aware that the Board may incur substantial costs

in its compilation and preparation of the information, espe-

cially in light of the case-by-case review and redaction of the

files necessitated by Section 3(a)(1). Section 9 of the Act makes

clear that all costs incurred in providing access to public records

must be borne by the requesting party. Section I] provides:

A bond for payment of costs for the preparation of such

public records, or a prepayment in cash of the anticipated

costs for the preparation of such records, may be required

by the head of the department or agency as a condition

precedent to the preparation of such record where the

record is unduly costly and its reproduction would cause

undue hardship to the department or agency if the costs

were not paid.

A-33 -

It is evident that the very situation contemplated by the Legis-

lature in enacting Section |! is before us in this case. After a

determination of the anticipated costs of providing the requested

information by the chief administrative officer of the Industrial

Accident Board and the Board of Control, the Foundation may

be required to post a bond, in accordance with Section 11, as

a condition precedent to the Board's preparation of the records

for the Foundation’s inspection. These anticipated costs should

of course include the expenses which may be incurred incident

to the redaction of the records for the protection of individual

claimants’ privacy interests.

The Court of Civil Appeals’ judgment reversed the judgment

of the trial court and remanded the cause. Because we agree

that the trial court’s judgment was erroneous and that the

cause must be remanded, we affirm the judgment of the Court

of Civil Appeals. The cause is therefore remanded to the trial

court for further consideration in accordance with this opinion.

Ross E. Doughty

Justice

Opinion delivered:

July 21, 1976

Concurring opinion by Justice Daniel

Concurring opinion by Justice Johnson

Dissenting opinion by Justice Reavley, joined by Justices

Steakley, Pope and Denton.

— A-34 —

IN THE SUPREME COURT OF TEXAS

No. B-5535

INDUSTRIAL FOUNDATION OF YX

THE SOUTH, x

Petitioner x

X From Travis County

V. x

7 Ninth District

TEXAS INDUSTRIAL ACCIDENT X

BOARD, et al, X

Respondents x

CONCURRING OPINION

It is my opinion that, with respect to the individual claim files

of the Industrial Accident Board, the Legislature did not intend

Article 6252-17a to be as broad as it was written. In this respect,

I agree with some of the reasoning set forth in Justice Johnson’s

concurring opinion. On the other hand, as pointed out in the

majority Opinion, it is our duty to interpret and apply the

statute as written. If this interpretation is broader or narrower

than intended, the Legislature will soon have an opportunity

to amend and clarify the statute. I concur with the majority

opinion.

Price Daniel

Justice

Opinion delivered: July 21, 1976

~ A-35 —

IN THE SUPREME’ COURT OF TEXAS

No. B-5535

INDUSTRIAL FOUNDATION OF YX

THE SOUTH, x

Petitioner X

X From Travis County

Vv. x

X Ninth District

TEXAS INDUSTRIAL ACCJDENT YX

BOARD, et al, X

Respondents x

CONCURRING OPINION

Since a majority of this court has concluded that Rule 9.040 of

the Industrial Accident Board is invalid as a matter of law under

the Open Records Act, Article 6252-17a, Texas Revised Civil

Statutes Annotated, this writer joins Justice Doughty's opinion

insofar as it requires that certain information in the Board’s

records be withheld to protect the common law right of privacy

of compensation claimants. However, this writer would remand

the case to determine the validity of Rule 9.040.

The court’s holding today, which will have the effect of re-

leasing the bulk of the records maintained by the Industrial

Accident Board for public inspection, runs the risk of seriously

damaging the Texas workmen’s compensation system and

frustrating the legislative purpose expressed in the Work-

men’s Compensation Act. This result is neither contemplated

nor compelled by the Open Records Act.

— A-36 —

A major objective of this state’s workmen’s compensation

system is to provide workers with a means of asserting rela-

tively small claims for job-related injuries that otherwise could

not be asserted because of the prohibitive expenses incident

to litigation. Under the holding of the majority of this court

many workers may now find it too “expensive” to assert rela-

tively small compensation claims because of the well-recognized

risk of discrimination against workmen's compensation claim-

ants. Rule 9.040 was originally promulgated by the Industrial

Accident Board in 1961 to assure confidentiality regarding

compensation claims and thereby reduce the risk of employ-

ment discrimination against claimants. The rule provides that

as a prerequisite “for the furnishing of information on a

claimant, there must be a workmen's compensation claim for

the named claimant open or pending before this Board or on

appeal to a court of competent jurisdiction from the Board at

the time the record search request or request for information is

presented.” The rule further states that the requested informa-

tion may be provided to the following persons only: “(1) the

claimant; (2) the attorney for the claimant; (3) the carrier;

(4) the employer at the time of the current injury; (5) third

party litigants.”

Rule 9.040 was promulgated pursuant to the Board's rule-

making authority under Article 8307(4), Texas Revised Civil

Statutes Annotated, which provides in part:

“The Board may make rules not inconsistent with this law

for carrying out and enforcing its provisions... .”

The Workmen’s Compensation Act does not contain any

express provision limiting the availability of claim records,

but the Act contemplates promulgation by the Board of rules

regarding confidentiality. Article 8307(9), T.R.C.S.A., pro-

vides in part:

—

— et —

“Upon the written request and payment of the fees there-

for, which fees shall be the same as those charged for similar

services in the Secretary of State's office, the board shall

furnish to any person entitled thereto a certified copy

of any order, award, decision or paper on file in the office

of said board... .” [Emphasis added. }

By providing that the Board furnish its records only to “per-

son{s] entitled thereto.” the Legislature clearly indicated the

Board’s authority to promulgate rules limiting the disclosure

of its records.

Section 3(a)(1) of the Open,Records Act provides the follow-

ing exception to the definition of “public information”:

“information. deemed confidential by law, either Con-

stitutional, statutory, or by judicial decision; .. .”

The question is whether records made confidential by a rule

promulgated by the Industrial Accident Board pursuant to its

statutory rule-making powers constitute “information deemed

confidential by [statutory] law” under Section 3(a)(1) of the

Open Records Act. The majority concludes that Section 3(a)(1)

of the Open Records Act does not encompass records made

confidential by Rule 9.040 for the following reasons:

“To imply such authority merely from general rule-

making powers would be to allow the agency to circum-

vent the very purpose of the Open Records Act. Absent

a more specific grant of authority from the Legislature

to make such a rule, the rule must yield to the statute.”

Two criticisms of the majority’s analysis are evident. First

it is suggested that the validity under Section 3(a)(1) of the Open

Records Act of an administrative rule regarding confidentiality

depends upon the specificity of the legislative grant of rule-

making authority. However, this appears to be a rather insub-

— A-38 —

stantial basis for distinguishing between such rules. A more

appropriate basis for determining what administrative rules are

valid under Section 3(a)(1) of the Open Records Act would turn

upon the relationship between the rule in question and the

Statutory objective that the rule is designed to achieve. If

the statutory objective could not be obtained without promul-

gation of the rule, then records made confidential by the rule

would constitute “information deemed confidential by [statu-

tory] law.” A second criticism of the majority's reasoning con-

cerns the suggestion that administrative rule-making powers

might thwart the Open Records Act if rules regardit, confi-

dentiality were valid under Section 3(a)(1) of the Act. However,

the majority chooses to risk thwarting the Texas Workmen's

Compensation Act in order to preserve the Open Records Act.

The Open Records Act does not compel such a result, and the

Act can be interpreted to avoid making a choice between it

and the Workmen’s Compensation Act. A closer examination

of the legislative intent of the Open Records Act is necessary.

The Industrial Accident Board has contended that Rule 9.040

should be held valid under Section 3(a)(1) of the Open Records

Act upon the principle that “{a] rule or order promulgated

by an administrative agency acting within its delegated authority

should be considered under the same principles as if it were

the act of the Legislature.” Texas Liguor Control Buard v. Alttic

Club, Inc., 457 S.W.2d 41, 45 (Tex. 1970). Administrative

rules are binding upon the courts if valid. Gerst v. Oak Cliff

Savings and Loan Association, 432 S.W.2d 702 (Tex. 1968).

A presumption of validity attaches to administrative rules,

Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946),

and in determining the validity of such rules courts are limited

to deciding “whether the action is within the powers delegated

to the agency and, if so, whether the action is arbitrary, capricious

or unreasonable because not reasonably supported by substan-

tial evidence. Texas State Bd. of Examiners in Optometry v.

Carp, 388 S.W.2d 409, 415 (Tex. 1965).

— A-39 —

The essential weakness of the Board’s contention is that the

clear intent of the Open Records Act was to strike down ad-

ministrative rules regarding confidentiality. For this reason

such administrative rules do not enjoy the normal presumption

of validity. However, it is nevertheless possible that certain

administrative rules on confidentiality may be valid under

Section 3(a)(1) of the Open Records Act. The majority even

suggests that such rules may be valid when promulgated pur-

suant to a reasonably specific grant of legislative authority.

This writer would hold that administrative rules on confiden-

tiality are valid under Section 3(a)(1) of the Open Records Act

(1) if promulgated pursuant to a statutory grant of rule-making

authority, regardless whether such grant is specific or general,

and (2) if the rule is necessary to the accomplishment of the

legislative goals set forth in the statute.

What does the term “information deemed confidential by

[statutorv] law” mean? Does it merely encompass records that

are specifically designated confidential by statute, or does it

also include records made confidential by administrative

rules that are necessary to accomplish statutory objectives set

forth by the Legislature? The language of Section 3(a)(1) of

the Open Records Act could obviously accommodate either

interpretation.

The crucial issue is legislative intent. It might be argued that

by listing in the Open Records Act sixteen exceptions to the

definition of “public information,” the Legislature indicated

its intent to make public all records not specifically designated

as confidential. However, this argument would miss the point.

One of the specific exceptions to the definition of “public

information” is “information deemed confidential by [statutory]

law.” This exception is broad enough to include information

made confidential by administrative rules that are promulgated

pursuant to statutory rule-making authority and are necessary

to the accomplishment of designated statutory objectives.

——

The effect of the majority's holding today may well be to

frustrate or destroy many legislative schemes that require some

degree of confidentiality in order to function. It would be un-

reasonable to conclude that the Legislature intended such a

result by enacting the Open Records Act. It is more likely that

the Legislature intended that certain administrative rules pro-

mulgated pursuant to statutory rule-making powers be left un-

affected by the Open Records Act, particularly where such

rules are necessary to effectuate its intent in other legislative

spheres. The purpose of the Open Records Act was to strike

down administrative rules on confidentiality that are not

necessary to the performance of designated statutory functions.

This is, of course, a summary judgment case. The summary

judgment proof raises a fact issue as to whether Rule 9.040 is

necessary to the performance of the Industrial Accident Board’s

statutorily prescribed duties. The Board’s statutory duty to

make the compensation claims procedure fully available to

workers across the state is implicit in the various provisions

of Article 8307, T.R.C.S.A. Consequently, it has been held that

the Board may not impose additional burdens on a claimant's

right to seek compensation benefits. Kelly v. Industrial Accident

Board, 358 S.W.2d 874 (Tex. Civ. App.—Austin 1962, writ

ref'd). However, the summary judgment proof indicates that the

public release of the Board's records may impose a substantial

burden on the right of workers to seek compensation benefits. '

The imposition of such a burden upon potential claimants

would be inconsistent with the Board’s statutory duty to

make the compensation procedure fully available to injured

workers. It follows that, according to the summary judgment

' Board Member Jim McCuan’s summary judgment affiday it indicated that

many injured workers are afraid to file compensation claims because of the

threat of employment disrimination:

“As a member of the Industrial Accident Board. | have also been told of

some employers discharging their own employee if he makes a claim for

workmen's compensation benefits. | have spoken to employee organiza-

tions, seminars, union meetings and other functions and | have become

well aware of the fear of some employees to file a claim for a serious and

legitimate injury out of fear that such information will become known and

that they will be either discharged or denied employment for having

sought legal recovery for the injury.”

—"

Ce te) CAO ak AR Aces Neen Sd

—~ ht ~

proof, the guarantee of confidentiality contained in Rule 9.040

may be necessary to the Board’s performance of its statutory

duties. If it is determined that Rule 9.040 is indeed necessary

to the Board’s performance of its statutory duties, the rule

should be declared valid under Section 3(a)(1) of the Open

Records Act.

In any event, this writer would hold that claims information

supplied to the Board during the period from 1961 to 1973 is

confidentia! by judicial decision under Section 3(a)(1) of the

Open Records Act. Rule 9.040. promulgated in its original

form in 1961, was a valid exercise of the Board’s rule-making

powers and would undoubtedly have been upheld by the courts

but for the enactment in 1973 of the Open Records Act. The

majority accurately states that claimants who supplied infor-

mation to the Board between 1961 and 1973 in reliance on Rule

9.040 do not have a “vested right” to confidentiality; neverthe-

less, this court cannot overlook the blatant injustice that release

of such records entails. Many claimants probably would have

refrained from filing their claims if they had known that in-

formation given to the Board might subsequently be released

to the public. Under the majority’s holding these claimants are

the unfortunate victims of a change in the law. They now face

the serious risk of discharge from their jobs or employment dis-

crimination, and they have no practical means of redress.’

The majority seems to forget that the right of privacy on which

it relies so heavily was once created by the courts to prevent

a blatant injustice. The common law still has the capacity to

deal with such matters.

Sam D. Johnson

Justice

OPINION DELIVERED: July 21, 1976

2 Article 8307c(a) provides:

“No person may discharge or in any other manner discriminate against

any employee because the employee has in good faith filed a claim. hired a

lawycr to represent him ina claim. instituted, or caused to be instituted. in

good faith. any proceeding under the 1 cxas Workmen's Compensation

Act, or has testified or is about to testify in any such proceeding.”

See discussion of ineffectiveness of Article 8307c as a remedy for wrongful

discharge or employment discrimination in Texas Tech Law Review,

Volume 4. at 387 (1973)

— A-42 —

IN THE SUPREME COURT OF TEXAS

No. B-5535

INDUSTRIAL FOUNDATION OF

THE SOUTH,

Petitioner

X From Travis County

V. x

X Ninth District

TEXAS INDUSTRIAL ACCIDENT Xx

BOARD, et al, X

Respondents X

DISSENTING OPINION

I would affirm the judgment of the trial court. I agree with

everything in the opinion of the majority except what is written

to support the holding that information on the nature of the

injury, given in the claim for workmen's compensation filed

with the Industrial Accident Board, may be “deemed confidential!

... by judicial decision” and thus become exempt from disclosure

by force of Section a1) of the Texas Open Records Act.

We are shown no judicial decision which classifies the com-

pensation claim or its contents as intrinsically “confidential.”

The Court finds the legislative intent in Section (a1) of the

Open Records Act by an intricate route, which | shall now

retrace. This Court has previously recognized a cause of action

in tort for the unwarranted invasion of the right of privacy.

Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973). The Court

there spoke of the right to recover damages where the defendant

publicizes private facts or affairs of the plaintiff, the public

ee ae ee er eee ed

— A43 —

disclosure being offensive to a person of ordinary sensibilities

and the matter being beyond legitimate public concern. The

publication of information (however obtained by the publisher)

about the nature of the injuries of compensation claimants may

or may not be actionable, but that question is not before us.

No one seeks to publicize the information. The Court here

reasons, however, that since making the compensation claim a

public record would give all persons freedom to publicize

the contents of the claim, the Legislature must have intended

to keep confidential that information which could not be pub-

licized with impunity — were that information nor a matter of

public record.

| doubt that we are entitled to read this intent into the

Legislature’s use of “confidential.” I read the Legislature to

be concerned with confidentiality entirely apart from the manner

of use of the information. The Open Records Act states that

“it shall be liberally construed in favor of the granting of any

request for information.” The effect of the Court's construction

in this case seems to me to require judicial review of the bulk

of government records prior to their disclosure — lest some em-

barrassing personal information be present. Section 10(a) cf

the Act provides that any person who distributes “confiden-

tial” information commits a crime punishable by as much as

six months in jail and or a fine of as much as $1,000. Public

officials who face that consequence are not likely to take any

chances on the release of records which might contain offen-

sive information. This will also be a useful excuse for those

who object to disclosure for other reasons. Those officials

will await the order of a court before opening their records to

the public. It was not the intention of the Legislature to turn

over the administration of the Open Records Act to the judi-

ciary. | would construe our question of legislative intent in

favor of disclosure and then await legislative change if the result

is Objectionable. This area of confidentiality can best be mapped

by statute.

—_—~ wo

Aside from all this, and whether looking at the bare language

of Section 3(a)(1) or looking further at the tort action for the

invasion of privacy as a guide to the construction of that statutory

language, I do not regard the information included in a claim

against an insurance company, being enforced through the Indus-

trial Accident Board, as private. See Prosser, Law of Torts,

p. 810 (4th ed. 1971).

The information of the nature of the claimant’s injury is

given to the employer and to the employer's insurance carrier

as well as to the Industrial Accident Board. The employer

or carrier may not be free to publicize all information of the in-

jury, but they are certainly under no mandate to keep it secret.

No confidential relationship exists. The parties are often ad-

versaries. The employer and carrier may surely cG»sclose this

information to the Industrial Foundation of the South.

I liken a claim made and filed with the Industrial Accident

Board to a cause in court. The claims are not filed for the pur-

pose of collecting some governmental! benelit but for purpose of

establishing a valid claim against an opposing party. Court

records are not protected by any common law right of privacy.

An example is Hubbard y. Journal Publishing Company, 69

N.M. 473, 368 P.2d 147 (1962), in which a minor female brought

suit against a newspaper for an alleged violation of her right

of privacy for the publication of an article based on juvenile

court records. In the article it was stated that the minor plaintiff's

brother had sexually assaulted her and he had been sentenced

to 60 days in a juvenile home. The court held that there was no

invasion of privacy because these facts were part of the court

records.

I realize that the Legislature could choose to deny public

access to Industrial Accident Board records, but the claims

before the Board are similar to lawsuits and | would not regard

them to be private in nature — either for purpose of construing

Pine en er ee ee ee

— A-45 —

the Open Records Act as now written or for purpose of delin-

eating causes of action for the abuse of the right of privacy.

Thomas M. Reavley

Associate Justice

Associate Justices Sieakley, Pope and Denton join in this

Dissent.

OPINION DELIVERED: July 21, 1976

— A-46 —

IN THE

COURT OF CIVIL APPEALS

NINTH SUPREME JUDICIAL DISTRICT

BEAUMONT, TEXAS

NO. 7717

TEXAS INDUSTRIAL ACCIDENT

BOARD, ET AL

APPELLANTS

INDUSTRIAL FOUNDATION

OF THE SOUTH

APPELLEE

This case involves the construction of the Texas Open Records

Act. TEX. REV. CIV. STAT. ANN. 6252-17a (Supp. 1974-1975)

(hereinafter the “Act”), as applied to claims for workmen’s com-

pensation benefits filed by injured employees in Texas. Plaintiff

sought to tie into the computer system of the Industrial Accident

Board “and extract, by electronic means” certain items ot infor-

mation appearing on every claim for workmen's compensation

filed by every injured employee in Texas covered by that law.

The trial court granted plaintiff a summary judgment allowing

plaintiff to inspect and copy such claim forms, denied the sum-

mary judgment sought by the defendants, and they have ap-

pealed.

Plaintiff alleged it was a nonprofit corporation engaged

in gathering information relating to workmen’s compensation

claims for dissemination to its 282 members who were employers

of workmen. It sought, and procured, a declaration that claims

filed with the Industrial Accident Board by injured workmen in

Texas, under the provisions of TEX. REV. CIV. STAT. ANN.

— A-47 —

art. 8307, § 4a (1967), are “public records and subject to inspec-

tion and copying by the public” as provided for in the Act.

Defendants' were ordered, by the writ of mandamus, to permit

copying of all such claims so as to disclose the file number of

the claim, claimant’s name, his social security number, his

employer, the date of injury and the nature thereof, and the

name of claimant’s attorney, if any.?

Defendants appeal upon five points of error which require a

more detailed statement in connection with several of the

contentions brought forward.

At the outset it is well to state that while the Act is new and

as yet without judicial interpretation, we bear in mind the pur-

pose as set out in Sec. / and the requirement that it “be liberally

construed in favor of the granting of any request for informa-

tion.” Sec. 14 (d). We likewise readily concede that the Industrial

Accident Board is a governmental body as defined in Sec.

2 (1) (A) and that under Sec. 8? a writ of mandamus may be

issued to compel the Board to make public information as

defined in the Act available under the Act.

But, in deciding this appeal we must bear in mind two other

rules, those relating to the writ of mandamus and those govern-

ing the granting of summary judgments.

' The defendants below were the Industrial Accident Board, an agency of the

State of Texas. its chairman and members as well as its executive director. We

will refer to them collectively as the defendants.

? A proviso in the judgment excluded information relating to injuries to a

claimant's genitalia.

* Sec. 8 of the Act reads: “If a governmental body refuses to request an

attorney general's decision as provided in this Act. or to supply public

information or information which the attorney general has determined to be a

public record, the person requesting the information or the attorney general may

seek a writ of mandamus compelling the governmental body to make the

information available for pubic inspection.”

In this case, the attorney general held that the information should have been

made available but defendants declined to follow his opinion.

—_S

When Sec. & speaks of the right to a writ of mandamus, it

says that the p: ‘son requesting the information “may seek a

writ of mandatus” and we are of the opinion that the writ

should issue only under the general rules relating to the granting

of the writ, some of which were set out by Justice Sharp in

Callahan v. Giles, 137 Tex. 571, 185 S.W.2d 793, 795 (1941):

“Mandamus is an extraordinary writ, and is not issued

as a matter of right. but rests largely in the sound discretion

of the court. *** The writ will not be granted unless the

petition shows that the realtor has a clear right to the

writ.***

“While mandamus is a common law writ and not an

equitable remedy, its issuance is largely controlled by

equitable principles.”

One of the cases relied upon by Justice Sharp in Callahan,

supra, was Westerman v. Mims, 111 Tex. 29, 227 S.W. 178,

181-182 (1921), quoting from a decision of the Supreme Court

of the United States, and saying:

“*Mandamus *** will not be granted in uid of those

who do not come into court with clean hands,” since the

writ issues ‘to remedy a wrong, not to promote one.’”

The Court continued:

“The rule that he who seeks a mandamus must present

his application with clean hands has no different meaning

from the general maxim in equity that ‘he who comes into

equity must come with clean hands.’

— A-49 —

“Having concluded that the petition of relators is

grounded on conduct amounting to an invitation to, and

hence participation in, an act violative of good faith and

of conscience, it follows that relators did not come into

court with clean hands, as required to entitle them to the

relief prayed for, and hence the mandamus is denied.”

Chief Justice Cureton, in City of Wink v. Griffith Amusement

Co., 129 Tex. 40, 100 S.W.2d 695, 702 (1936), applied this

maxim in this manner:

“One whose business violates the public policy of the state

... having no legal right,to be protected, and not coming

into court with ‘clean hands,” because his activities violate

the public policy of the state, cannot be given relief in a

court of equity.”

Defendants’ answer tendered several defenses, the first of

which was that the information sought by plaintiff was to be

used by its member firms to discriminate against prospective

employees in violation of TEX. REV. CIV. STAT. ANN. art.

8307¢ (Supp. 1974-1975).

Defendants, pursuant to TEX. R. CIV. P. 168, served inter-

rogatories upon plaintiff seeking to learn, inter alia: (1) the

purpose of wanting the file number of the claim, claimant’s

social security number, claimant’s employer's name, and the

name of claimant's attorney: (2) if such information had ever

been used as a basis for discharging an employee of a member

company of plaintiff; (3) if such information had ever been

used as the basis for refusing to employ a prospective employee

by a member company.

Thereupon, plaintiff filed its motion to suppress and to strike

all of such interrogatories. The trial court, although requiring

answers to a few of the interrogatories (which are not material

to this appeal) sustained plantiff's motion as to the interroga-

tories listed above and they were not answered by plaintiff.

— A-50 —

By point five, defendants contend that the trial court erred

in sustaining plaintiffs motion to suppress and to strike de-

fendants’ interrogatories which would have elicited answers

showing the use which would be made of the information re-

quested by plaintiff. We agree and sustain point five for the

reasons now to be stated.

This being an appeal from an order granting a summary

judgment, it is well to remember that an unusually long series

of cases from our Supreme Court has declared that it is the

burden of the moving party to demonstrate, as « matier of law.

that there is no genuine issue of fact and that he is entitled to

judgment.*

Defendants contend that if permitted to exercise their dis-

covery rights they would have established, or at least raised a

fact issue, that the purpose of the request for the infoimation

was to enable plaintiff to disseminate such information to its

“member companies” where it would thea be used to discrim-

inate against prospective employees of such companies. Ihe

plaintiff had alleged that its principal business activity was

the compiling of industrial accident claims which “are used

solely by its member companies for the purpose of assisting

in checking out a prospective employee's background prior

to hiring.”

In its brief, plaintiff amplifies its purpose by saving: “The

relevance of a prospective employee's past injury to the job

or task which he seeks to perform, even though he may be

physically incapable of performing same, is the reason [plain-

tiff] seeks to inspect the records of [defendants].” It also asserts

that small businesses cannot afford pre-employment medical

examinations of their employees; and. in other instances,

* This series of cases is set out in Coward v. Gateway National Bank of

Beaumont. 515 S.W.2d 129, 134, fn. 4 (Tex. Civ. App. Beaumont 1974, writ

granted). and need not be repeated here.

— ss

— A-51 —

union contracts prohibit such examinations. From this base

it argues that since the employer's insurance carrier is liable

to the injured workman for the consequences of any injury,

even if aggravated by a preexisting disability, the information

should be available to such member.

It then cites the recent decision of Swanson v. American

Manufacturing Company, 511 S.W.2d 561 (Tex. Civ. App.—

Fort Worth 1974, writ ref’d n.r.e.), holding that an employer

may lawfully discharge an employee who falsified his employ-

ment application by concealing prior compensable injuries not-

withstanding Art. 8307c.

Blacklisting is defined in and prohibited by TEX. REV.

CIV. STAT. ANN. arts. 5196c and 5196d (Supp. 1974-1975),

respectively, while Art. 8307c prohibits discrimination against

any employee who has in good faith filed a claim, hired a lawyer

to represent him in a claim, or instituted a proceeding under

the workmen’s compensation law.

This series of statutes clearly states the public policy of this

state; and, if one of the purposes of the plaintiff was to violate

- or to assist in the violation of such stated policy, it did not

come into court with clean hands. Thus, if the facts alleged by

the defendants as to the invidious purpose of plaintiff in the

acquisition of the information were to be established upon the

trial, plaintiff would not be entitled to the writ of mandamus.

City of Wink v. Griffith Amusement Co., supra (100 S.W.2d

at 702); Westerman v. Mims, supra (227 S.W. at 182).

In this summary judgment proceeding, with the plaintiff

having the burden of showing its right to the writ as a matter

of law, the trial court abused its discretion and erred in depriving

the defendants of the right to utilize the discovery rules to

prepare their defense. We need not speculate as to the results

which defendants would have obtained in their discovery; the

fact remains that they were entitled to attempt, at the very

— A-52 —

least, to procure admissible evidence and were denied this

right. No litigant should be cast in summary judgment until

he has had an Opportunity to prepare his case for trial. Cf.

Texas Department of Corrections v. Herring, 513 S.W.2d 6

(Tex. 1974), involving special exceptions to pleadings. See

also, Womack vy. Allstate Insurance Company, 156 Tex. 467,

296 S.W.2d 233, 237 (1956); “Moore” Burger, Inc. v. Phillips

Petroleum Company, 492 S.W.2d 934, 936 (Tex. 1972).

But, plaintiff argues that Sec. 5 (b)’ of the Act precludes

any inquiry on the part of the public agency into the purpose

to which such information is to be used. We are unwilling to

attribute such a broad meaning to the words used by the Legis-

lature. When the Board, from the meager record which we

review, had reason to believe that plaintiff intended to use the

information to aid in blacklisting and discriminating, courts

should not, with knee-jerk alacrity, lend assistance to such a

project. Instead, we are of the opinion that such fact should

be determined by the trial court so as to be in position to exer-

cise the discretion conferred by law.

Defendants’ point five is sustained and the judgment of the

trial court is reversed and the cause is remanded. Because of

the novelty of the case and its importance, we feel that it is our

duty to discuss briefly the remaining contentions of the parties

since they may be of importance in the trial of the case which

we have ordered.

Much of defendants’ brief is taken up with discussion of its

third point wherein they contend that the claim forms sought

by plaintiff are excepted from the operation of the Act “as in-

formation deemed confidential by the constitutional right of

privacy.” A governmental body is not required to furnish in-

* Sec. 5(b) of the Act reads: “Neither the custodian nor his agent who controls

the use of public records shall make any inquiry of any person who applies for

inspection or copying of public records beyond the purpose of establishing

proper identification and the public records being requested: .. .”

— A-53 —

formation found in its records if it is “information deemed

confidential by law, either Constitutional, statutory, or by

judicial decision.” Sec. 3 (a)(1) Act. We disagree for the reasons

now to be stated and overrule such point.

Defendants’ able counsel calls to our attention many of the

leading cases from the United States Supreme Court holding

that the right of privacy is one of constitutional dimension.®

We recognize, as indeed we must, the supremacy of the several

cases cited but only when confined to the particular field of

conduct involved. We do not find them controlling in the case

at bar. P

We have not been referred to any statute or judicial decision

which has declared that claims for workmen’s compensation

benefits are within the protection of the doctrine of privacy;

nor has counsel cited to us a decision in | exas raising the doctrine

of privacy to constitutional dimensions.

Only recently has Texas joined the majority of the other

jurisdictions in recognizing the right “to be let alone” by adopt-

ing in tort actions the rule that an “unwarranted invasion

of the right of privacy constitutes a legal injury for which a

remedy will be granted.” See Billings v. Atkinson, 489 S.W.2d

858, 860 (Tex. 1973), where Justice Denton discussed many of

the leading authorities. Because of our disposition of this point

of error upon other grounds, we do not find it necessary to

determine if the right of privacy has now attained constitutional

status in Texas.

Instead, we turn to the statute itself in an effort to determine

if the records sought by plaintiff are within the ambit of the Act.

* See. ¢.g.. Griswold v. Connecticut, 381 U.S. 479, 14 L.Ed.2d 510, 85 S.Ct.

1678 (1965); Eisenstadt v. Baird, 405 U.S. 438, 31 L.Ed.2d 349, 92 S.Ct. 1029

(1972); Stanley v. Georgia, 394 U.S. 557, 22 L.Ed.2d 542. 89 S.Ct. 1243 (1969);

Rue v. Wade. 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705 (1973), et al.

—~

In passing upon the Act, we are required to look to the pur-

pose of the Legislature in adopting the Act and it is clearly

stated in Sec. / in the most positive terms.’ This is followed by

the broad language of Sec. 3 (a), quoted in the margin. Alter

providing that “{a]// information collected, assembled, or main-

tained by governmental bodies” is public information and avail-

able for inspection, the Legislature carefully defined sixteen

exceptions on/y when such information could be withheld from

inspection. Subsection 14 provides that student records at

educational institutions could not be inspected and copied:

subsection 15 made birth and death records in the Bureau of

Vital Statistics immune from inspection. It is significant that

no mention is made of claims filed with the Industrial Accident

Board.

It is well established in this state that the paramount or

cardinal rule of construction of statutes is to ascertain and vive

effect to the intention of the Legislature. Many cases could be

cited in support of this elementary rule: but in the interest

of space we mention only a few. Sec. e.g.. Dolan v. Walker.

121 Tex. 361. 49 S.W.2d 695, 697 (1932): Srate vo Shoppers

World, Inc., 380 S.W.2d 107, 110 (Tex. 1964): Flowers \.

Dempsev-Tegeler & Co., 472 S.W.2d 112. 115 (Tex. 1971).

’ “Pursuant to the tundamental philosophy of the American constitutional

form of representative government which holds to the principl: that government

is the servant of the people. and not the master of them. it is hereby declared to be

the public policy of the State of Texas that all persons arc. unless otherwise

expressly provided by law. at all times entitled to full and complete intormation

regarding the affairs of government and the official acts of those who represent

them as public officials and employees. The people. in delegating authority. do

not give their public servants the right to decide what is good for the people to

know and what ts not good for them to know. The people insist on remaining

informed so that they may retain control ov er the instruments thes have created

To that end. the provisions of this Act shall be liberall, construed with the view

of carrying out the above declaration of public policy ~

* Sec. 3(a) of the Act reads in part: “All information collected. assembled. or

maintained by governmental bodies pursuant to law or ordinance or in

connection with the transaction of official business is public information and

available to the public during normal business hours of any governmental body.

with the following exceptions only: .. ”

ee oe er

acti ite en rt Se ee ee re

— A-55 —

When that intention has been ascertained, it is the duty of the

courts to enforce such intent. Second Injury Fund v. Keaton,

162 Tex. 250, 345 S.W.2d 711, 714 (1961). We are not to look

to the consequences of our action here in limiting the applica-

tion of the Act to the exact words of the Act. Johnson v. Darr,

114 Tex. 516, 272 S.W. 1098, 1099 (1925).°

By specifically naming the sixteen exceptions from disclosure,

the Legislature in effect expressed its intention to make all

other records discoverable. The maxim expressio unius est

exclusio alterius (the naming of one thing excludes another)

is applicable here. The rule was stated by Justice Sharp in

State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238,

241 (1943): ‘

“It is a settled rule that the express mention or enumeration

of one person, thing, consequence, or class is equivalent

to an express exclusion of all others.”

We conclude that claims for workmen's compensation filed

with the Industrial Accident Board constitute “information

collected, assembled, or maintained” by a governmental body

and that such claims are available for inspection under Section

3 (a) of the Act.

As an ancillary contention, defendants urge that Industrial

Accident Board Rule 9.040, quoted in the margin,'® authorizes

* This decision is the only one in our jurisprudence decided by an all-woman

Supreme Court of Texas. a panel appointed by Governor Neff which sat during

the early months of Governor Miriam A. Ferguson's first term of office.

furnishing of information on a claimant, there must be a workmen's

compensation claim for the named claimant open or pending before this Board

or on appeal to a court of competent jurisdiction from the Board at the time the

record search request or request for information is presented to this Board. The

first. middle and last name of the claimant. age and social security number, and

if possible, dates of injury and the name of prior employers must be given in

request for information. The Board will furnish the requested information or a

record check only to the following: (1) the claimant, (2) the attorney for the

claimant: (3) the carrier: (4) the employer at the time of the current injury: (5)

third party litigants. Fees and charges for record requests may be obtained from

the Industrial Accident Board.” (1961) (Rev. 1974)

— A-56 —

the denial of the information plaintiff now seeks in its suit.

It is readily apparent that such rule, if valid and operative,

would prevent any person, firm or corporation from receiving

such information unless there was an open claim for workmen's

compensation for a particularly named ciaimant then pending

before the Board or a court of competent jurisdiction. In such

event, only the claimant, his attorney, the carrier, the employer

at the time of the current injury, and third party litigants could

obtain such information. It is obvious that plaintiff could not

secure such information, except possibly as to one of its own

employees—certainly not as to all claimants on a wholesale

and indiscriminate basis.

Defendants, citing cases arising under rules adopted by the

Railroad Commission and the Liquor Control Board, argue that

this rule has the same “force and effect of a statute.” We do not

agree. The Railroad Commission exercises legislative power

specifically delegated to it by the Constitution and the statutes.

Texarkana & Ft. S. Ry. Co. v. Houston Gas & Fuel Co., 121

Tex. 594, 51 S.W.2d 284, 287 (1932). The Texas Liquor Control

Board (now known as Texas Alcoholic Beverage Commission)

exercises police power under a statute delegating broad rule-

making authority. Texas Liquor Control Board v. Attic Club.

Inc., 457 S.W.2d 41, 42 (Tex. 1970).

Contrasted with the rule-making power of the two agencies

just mentioned, the only general authority for the promulgation

of rules by the Industrial Accident Board is this language found

in TEX. REV. CIV. STAT. ANN. art. 8307, § 4 (1967). “The

Board may make rules not inconsistent with this law for carry-

ing out and enforcing its provisions... .”"!

'' Limited authority to promulgate rules governing pre-hearing conferences

is granted to the Board by Ari. 8307. 4 /0 (4). but defendants do not rely upon

this statute in the presentation of the point under consideration.

— A-57 —

Rules promulgated by the Industrial Accident Board have

fared poorly in the courts. Thus, a rule was found to exceed

the delegated authority of the Board and was held invalid in

Kelly v. Industrial Accident Board, 358 S.W.2d 874, 878 (Tex.

Civ. App.—Austin 1962, writ ref'd). See also, Jackson v. Texas

Employers’ Insurance Association, 471 S.W.2d 450, 451 (Tex.

Civ. App.—Eastland 1971, writ ref‘d n.r.e.). In Bailey v. Texas

Indemnity Ins. Co., 14 $.W.2d 798, 802 (Tex. Comm'n App.,

1929), striking down still another rule, the Court said: “The

regulations of the Industrial Accident Board cannot be used in

construing the law, so as to give it a higher mandate than that

of the statute.” i

Defendants also cite Galacia v. Texas Employers’ Insurance

Association, 348 S.W.2d 417, 420 (Tex. Civ. App.— Waco 1961),

writ ref'd n.r.e.), and Clawson v. Texas Employers’ Insurance

Ass'n, 469 S.W.2d 192, 195 (Tex. Civ. App.—Houston [14th

Dist.] 1971), affirmed, 475 S.W.2d 735 (Tex. 1972), each of

which contains language to the effect that Industrial Accident

Board Rules “have the force and effect of law.” These author-

ities were severely wounded by Chief Justice Calvert's repudi-

ation of the basic holding in each case. Clawson (475 S.W.2d

at 738).

Another instance of rule-making failure on the part of the

Board is to be found in Burton v. 1.C.T. Insurance Company,

304 S.W.2d 292, 296 (Tex. Civ. App.—Texarkana 1957, no

writ), where the court held that the Legislature “did not

intend to delegate legislative power to the Board, an adminis-

trative body, whereby such Board in the enactment of admin-

istrative rules could change any of the substantive laws of this

state.”

In determining the validity of rules promulgated by admin-

istrative agencies, the rule is stated in Texas State Bd. of Exam-

iners in Optometry v. Carp, 388 S.W.2d 409, 414-415 (Tex.

1965):

— A-5S8 —

“{R]eview by the judiciary is constitutionally limited to

a determination of questions of law, i.e., whether the action

is within the powers delegated to the agency and, if so,

whether the action is arbitrary, capricious or unreasonable

because not reasonably supported by substantial evidence.”

The rule under discussion does not appear to have any readily

discernible base in the compensation statute. Instead, as we

read the argument of defendants, it does not attempt to justify

its promulgation by pointing to statutory authority. The state-

ment of the point itself demonstrates the lack of statutory sup-

port.!!

The Act is one of general application to al! governmental

agencies in the State; and, we are of the opinion that the rule

relied upon does not withdraw the claims from the reach of the

Act since to do so would render it in conflict with the Act.

Defendants contend, alternatively, that the order of the trial

court should be confined to claims filed subsequent to the

effective date of the Act, June 14, 1973; but, we find no indication

in the Act that the right of inspection is to operate only prospec-

tively. Defendants’ attack is confined to the citation of the

parallel provisions in the Constitution of Texas, Art. I, Sec. 16.

and Constitution of the United States. Art. 1. Sec. 10. Although

it is not made clear in the argument, it appears that reliance is

placed upon the provisions relating to ex post facto or retro-

active laws.

More than a century ago, our Supreme Court determined that

the use of the words “ex post facto” is nominally confined to

the criminal law, rendering an act punishable in a manner it

" Point Two Reads: “The district court erred in rendering judgment for

(plaintiff) rather than for [defendants] because the files and records involved are

excepted from the operation of Article 6252-17a by Section May!) of that

statute as information deemed confidential by Texas Industrial Accident Board

Rule 9.040, which has the force and effect of a statute.”

— A-59 —

was not when committed. Bender v. Crawford, 33 Tex. 745,

751 (1870). Having exarnined the cases cited and being satisfied

that the text announces the correct rule, we now quote from

12 TEX. JUR. 2d, Constitutional Law, § 121, at 470 (1960):

“The distinction between the power of the legislature to

enact legislation and the prohibition of the legislature to

enact retroactive legislation should be kept in mind. The

legislature has the same power to act retrospectively as it

does to act prospectively. The prohibition found in the

proscription against retroactive legislation is not a pro-

scription against the legislative power to act. /f is a pro-

scription against a power of the legislature to destroy

vested rights. Thus so long as no vested right is destroyed

the right of the legislature to enact legislation effective

retrospectively is not limited.” (emphasis supplied)

We find no indication in the Act that only records which

came into existence after the effective date of the Act were to

be discoverable. From the language used by the Legislature,

it appears that all information within the governmental agencies

at the time the request is made is subject to being inspected under

the provisions of the Act. In any event, we do not find that

any vested right has been destroyed by the adoption of the Act.

We conclude this overly long opinion by reference to the right

of the plaintiff to intrude its information-gathering activities

into defendants’ computer system. We are unable to determine

from our abbreviated record whether plaintiff seeks a copy of

every claim filed since 1913 or if it wants access to defendants’

computer program upon a selective basis as to particular indi-

— Ao —

viduals who may have filed claims. It is apparent, however,

that plaintiff seeks to use the computer system in the acquisi-

tion of the information it sought in its suit.!?

Defendants’ summary judgment proof contained the affi-

davit of its Data Processing Manager which asserted that com-

pliance with the plaintiff's request to enter defendants’ computer

program “would cause a complete breakdown of our already

overloaded agency workload; it would also require the complete

restructuring of our data processing system and the hiring of

personnel to supply the information requested by the Industrial

Foundation of the South.”

While this is properly a matter for determination of the

State Board of Control, under Sec. 9 of the Act, the possibility

of abuse of computer privileges is one addressed to the sound

discretion of the trial court. In the law review article entitled

“Privacy and the Computer,” V. Countryman, 49 TEX. L. REV.

837. 863 (1971), the author points to some dire consequences

which may flow from the invasion of privacy by entry into a

computer system. We are of the opinion that such consequences

may be appropriate for consideration by the trial court in the

exercise of discretion in the award or denial of the writ of maa-

damus upon the trial which we have ordered.

2 In a letter to defendants, plaintiff's counsel stated: “In some of my past

correspondence with your agency, | have made mention of the fact that we were

aware that the Industrial Accident Board has been using a compter system for

the storing of information pertaining to its files. During the last year. my client

has taken occasion to investigate the technical feasibility of tying into a

computer system such as the one being used by the Industrial Accident Board

and extract, by electronic means, the information requested. Our past inves-

tigations reveal that this approach is technically sound and can be accomplished

with a minimum of disruption to the internal workings and everyday operations

of the Industrial Accident Board. It is my further understanding by the installa-

tion of a terminal or terminals which would accommodate additional telephone

lines, outside inquiry can be made upon the existing computer system which

would be programmed to extract only information requested and which would

not put any information into the computer system.” (emphasis supplied)

add

— Atl —

Under the abbreviated record now before us, we are unable to,

and do not determine whether the Legislature intended to make

claims of injured workmen filed with the Industrial Accident

Board available for commercial exploitation by a private cor-

poration. See, e.g., Wine Hobby USA, Inc., v. United States

Internal Revenue Service, 502 F.2d 133, 137 (3d Cir. 1974).

For the error herein pointed out, the judgment of the trial

court is reversed and the cause remanded.

REVERSED and REMANDED.

Quentin Keith

Associate Justice

Opinion delivered

July 10, 1975

— A-62 —

No. 7717

TEXAS INDUSTRIAL ACCIDENT BOARD

INDUSTRIAL FOUNDATION OF SW

DISSENTING OPINION

I would go further than the majority opinion and hold that

the information desired by the Industrial Foundation of the

Southwest cannot be obtained. The Texas Open Records Act

[TEX. REV. CIV. STAT. ANN. art. 6252-17a § 1 (1974-75)]} on

which the trial court based his judgment herein declares that

“all persons are, unless otherwise expressly provided by law, at

all times entitled to full and complete information regarding

the affairs of government and the official acts of those who

represent them as public officials and employees.” The infor-

mation on a notice of injury or claim for workmen’s compensa-

tion can by no stretch of the imagination be an “official act. . .

[of] public officials and employees.” They are private disclosures

which may at times be extremely sensitive, embarrassing,

even detrimental to the individual concerned. The trial court

recognized this by exempting in his order “injury to the geni-

talia of the body.”

The Act [§ 2 G(2) (1974-5) of the TEX. REV. CIV. STAT.

ANN.] defines public records as “the portion of all documents,

writings, letters, memoranda, or other written, printed, typed,

copied or developed materials which contain public informa-

tion.” 1 do not regard the information appellee wishes to com-

puterize as public information.

SS ee LO Si eA tae GO te

- nt le

a2 lel ele Memes Pate. ue? +

— A63 —

Art. 8307 § 4 of TEX. REV. CIV. STAT. ANN. (1967) allows

the Industrial Accident Board to “make rules not inconsistent

with this law for carrying out and enforcing its provisions.”

The Board has adopted Rule 9.040 as follows:

“As a prerequisite for approval of a request for a record

check . . . on a claimant, there must be a workmen’s

compensation claim for the named claimant open or

pending before this Board or on appeal to a court of com-

petent jurisdiction from the Board at the time the record

search request . . . is presented to this Board. The first,

middle and last name of the claimant, age and social security

number, and if possible, dates of injury and the name

of prior employers must be given in request for. . . a record

check.” (1961, Rev. 1974)

This is a reasonable rule and offers protection to parties

interested in claims before the Board.

No law is good law unless it makes good sense. It does not

make good sense to me to computerize the information appellee

wishes on hundreds of thousands of individuals in the files

of the Industrial Accident Board.

If one of the purposes of securing this information is to screen

job applicants, it violates the spirit of Texas law. See TEX. REV.

CIV. STAT. ANN. art. 8307c § | (1974-5); art. 5196 (1971); art.

5196c (1974-5).

Martin Dies, Jr.

Chief Justice

July 10, 1975

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.