Hubert v. Harte-Hanks Texas Newspapers, Inc., HARTE-HANKS

• Decision Date: 11 May 1983
• Docket Number: No. 13580,HARTE-HANKS,13580
• Citation: 652 S.W.2d 546
• Court: Texas Court of Appeals
• Parties: 12 Ed. Law Rep. 159 Dr. Frank W.R. HUBERT, Individually and in His Official Capacity as Chancellor of the Texas A & M University System, et al., Appellants, v.TEXAS NEWSPAPERS, INC., d/b/a Bryan-College Station Eagle, Appellee.

Page 546

652 S.W.2d 546

12 Ed. Law Rep. 159

Dr. Frank W.R. HUBERT, Individually and in His Official Capacity as Chancellor of the Texas A & M University System, et al., Appellants, v. HARTE-HANKS TEXAS NEWSPAPERS, INC., d/b/a Bryan-College Station Eagle, Appellee.

No. 13580.

Court of Appeals of Texas Austin.

May 11, 1983.

Rehearing Denied June 8, 1983.

W. James Kronzer, Kronzer, Abraham, Watkins, Nichols, Ballard & Friend, Houston, for appellants.

David H. Donaldson, Jr., Graves, Dougherty, Hearon & Moody, Austin, for appellee.

Before PHILLIPS, C.J., and SHANNON and POWERS, JJ.

SHANNON, Justice.

Appellee Harte-Hanks Texas Newspapers, Inc., doing business in Bryan as the Bryan-College Station Eagle, filed suit in the district court of Travis County against appellants Dr. Frank Hubert, Chancellor of the Texas A & M University System, the Board of Regents of Texas A & M, the "Search Advisory Committee" of the Board of Regents, and twenty-eight persons who are members of the Board of Regents or the "Search Advisory Committee." Appellee by its suit sought a writ of mandamus pursuant to § 8 of the Open Records Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17a (Supp.1982) ¹ compelling appellants to make available the names and qualifications of candidates for the office of president of Texas A & M. After a bench trial, the district court signed an order granting the writ which commanded appellants to release all of the candidates' names and qualifications to appellee. This Court will affirm the order of the district court.

In August 1980, the Texas A & M Board of Regents created a "Search Advisory Committee" to provide assistance in the search for candidates for the office of president of Texas A & M. The regents appointed Dr. Frank Hubert to be executive officer of the search committee. Also appointed to the committee were Texans active in education, business, and industry. The committee sought nominations for the office of president, and, after evaluating the nominees, prepared a list of one hundred seventy-one names. The list was narrowed to thirty-five persons, whose names were recommended to the Board of Regents.

In January 1981, while the search was in process, appellee requested Dr. Hubert to furnish the names and qualifications of all of the presidential candidates considered by the Search Advisory Committee. Dr. Hubert did not produce the information, but on advice of counsel, prepared a request for an opinion of the attorney general as to whether the information was required to be disclosed under the Open Records Act. In June 1981, the attorney general ruled that the names and qualifications of candidates considered by the search committee must be disclosed, but that the committee's final recommendations on candidates to the Board of Regents were intra-agency memoranda excepted from the general disclosure requirement of the Open Records Act by § 3(a) of the Act. Tex. Att'y Gen. ORD-273 (1981). After the attorney general's opinion was released, appellants continued to resist disclosure, resulting in appellee's suit and the district court's order. Appellants did not request nor did the district court file findings of fact and conclusions of law. ²

Appellants attack the district court's order by four points of error which present two issues: (1) whether appellants are prevented from defending the suit for mandamus because they failed to file a suit challenging the attorney general's opinion within three days after they received it, and (2) whether the requested information is excepted from disclosure by § 3(a)(2) of the Open Records Act.

In support of the district court's order, appellee argues that appellants are barred from asserting the § 3(a)(2) exception as a defense to the suit in mandamus because they failed to challenge the attorney general's opinion within three days after its receipt. We do not agree with the argument. Appellee bases its contention on § 10 of the Act. Section 10(b) states that a custodian of public records commits a criminal offense if, acting with criminal negligence, ³ he refuses to release public records to anyone requesting them under the provisions of the Act. The custodian may assert as an affirmative defense to criminal prosecution under this section that within three working days of receipt of an unfavorable attorney general's opinion, he filed a cause of action seeking relief from compliance with the opinion. Section 10(c)(3). The Act provides for filing of such suit to protect a custodian of records from criminal liability. If the party seeking the records pursues his civil remedy, a suit for mandamus, the Act does not provide that the custodian may file a separate suit challenging the attorney general's ruling. But the custodian's inability to challenge the attorney general's opinion except to preclude criminal liability does not mean the custodian will be prevented from asserting in the mandamus action that the records are excepted from disclosure. In the mandamus proceeding, the public official may re-assert any grounds upon which he deems the record to be excepted from the general disclosure requirement of the Act. If the district court agrees with the public official and concludes the requested information to be exempt from disclosure, mandamus will not lie. If, however, the district court determines the information must be disclosed, ⁴ the official must release the information, subject to his right to appeal the order of the district court.

In the present appeal, appellants could not challenge the attorney general's opinion in a separate lawsuit. After the attorney general ruled, appellants' only course of action was to comply with the opinion or refuse to release the records and contest the mandamus proceeding brought by appellee. ⁵ In the mandamus proceeding, however, appellants properly asserted their contention that the requested materials were excepted from disclosure under § 3(a)(2) of the Act. The district court disagreed with appellants' contention and ordered appellants to comply with the attorney general's opinion. On appeal to this Court, appellants properly assert as a point of error their contention that the district court erred in holding that § 3(a)(2) did not protect the names and qualifications of the candidates from disclosure.

Appellants claim they are not required to disclose the names and qualifications of the candidates the Search Advisory Committee considered because § 3(a)(2) of the Open Records Act excepts this information from disclosure. Section 3(a) provides in relevant part:

(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 Constitutional, statutory, or by judicial decision;

(2) information in personnel files, the disclosure of which would constitute clearly unwarranted invasion of personal privacy; provided, however, that all information in personnel files of an individual employee within a governmental body is to be made available to that individual employee or his designated representative as is public information under this Act....

Appellants insist subsection (a)(2), relating to information in personnel files, prohibits disclosure of the information sought by appellee. Appellee concedes, for sake of argument, the material it seeks is information contained in a "personnel file," but maintains the disclosure of that information does not constitute "a clearly unwarranted invasion of personal privacy."

The dispute between the parties focuses on how "a clearly unwarranted invasion of personal privacy" should be determined. Appellants urge this Court to adopt a balancing test weighing a person's right to privacy against the public's interest in disclosure which is applied by the federal courts to cases decided under the Freedom of Information Act, 5 U.S.C. § 552 (1977 & Supp.1982). ⁶ Appellee asserts, on the other hand, that this Court's determination of whether disclosure would constitute an unwarranted invasion of privacy should be guided by the holding in Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668 (Tex.1976). In Industrial Foundation, the Supreme Court interpreted what information is excepted from disclosure under § 3(a)(1) of the Act, which restricts availability of information "deemed confidential ... by judicial decision." The petitioner in Industrial Foundation contended that information which formed the basis for an invasion of privacy tort under Texas law is the type of information which should be deemed confidential by the courts. Specifically, any information which, if publicized by a private person, would render that person liable for the tort of invasion of privacy, i.e., "public disclosure of private facts," as defined in Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973), should be deemed confidential under § 3(a)(1). The Supreme Court agreed with petitioner, holding that information (1) which contains highly intimate or embarrassing facts which, if publicized, would be highly objectionable to a reasonable person and (2) is not of legitimate concern to the public, is confidential and may not be disclosed. Industrial Foundation of the South v. Texas Industrial Accident Board, supra, at 685.

Appellants insist the legislature must have intended a different treatment for "information in personnel files" since that subject was treated separately in § 3(a)(2). Accordingly, appellants argue, this Court should not regard the test chosen by the Supreme Court in Industrial Foundation to apply to § 3(a)(1) as equally applicable to § 3(a)(2). The proper test, they claim, is one balancing a person's right to privacy against the public's interest in disclosure as applied by the...