Texas Comptroller of Public Accounts v. Attorney General of Texas and the Dallas Morning News, Ltd.

IN THE SUPREME COURT OF TEXAS

════════════

No.

08-0172

════════════

Texas Comptroller of Public

Accounts, Petitioner,

v .

Attorney General of Texas and

the Dallas Morning News, Ltd., Respondents

════════════════════════════════════════════════════

On Petition for Review from

the

Court of Appeals for the Third

District of Texas

════════════════════════════════════════════════════

Argued September 10, 2009

Justice Wainwright, joined

by Justice Johnson , dissenting in

part and concurring in part.

The dates of birth of state government employees that the Dallas Morning

News requested from the Comptroller in this case are defined as public

information—information legitimately collected and maintained by the State of

Texas. There is no dispute of that fact. Unlike social security numbers, the

Legislature has not expressly excepted birth dates from

disclosure. 1 And no one disagrees with the proposition

that public information should be handled in ways that provide protections

against identity theft. But we should not forget that the more public

information is protected from disclosure to the people, the less information the

public gets from the government that serves it. It is a fundamental policy of

the State of Texas that its citizens are entitled “at all times to complete

information about the affairs of government and the official acts of public

officials and employees.” City of Dallas v. Abbott , 304 S.W.3d 380, 388

(Tex. 2010) (Wainwright, J., dissenting) (citing Tex. Gov’t Code § 552.001).

The public information at issue has proven quite useful not only to

inform citizens of the actions of the government and to arm citizens to hold the

public sector accountable but also to highlight problems in the public sector

that should be addressed. For example, the information sought in this case,

which had been released to the News in prior years, was used to determine that a

number of Texas Youth Commission employees had some criminal background and that

some employees of a local school district had criminal records. 2 Dates of birth were used to confirm the

identities of public employees with criminal records and avoid confusing them

with the wrong persons with similar or the same names. These are legitimate uses

of public employees’ birth dates, which the Court precludes by its

opinion.

Obviously, whether to disclose or keep secret public information involves

a balancing of policy objectives, including the public’s right to transparency

in governmental affairs and privacy concerns of public employees. In

promulgating the Texas Public Information Act (PIA), the Legislature balanced

disclosure and protection of different types of public information about public

employees. The Legislature decided that dates of birth are public information,

as the Court and the Comptroller concede. And the State of Texas for years has

sold birth date information of Texas public employees to businesses, and the

parties point to no problems with identity theft arising from those prior

disclosures. 3 To address illicit use of personal

information, the Legislature promulgated the Identity Theft Enforcement and

Protection Act with criminal penalties for those parties who engage in identity

theft. 4 Before today, no Texas court had held

that dates of birth of public employees are confidential or otherwise precluded

their disclosure.

This case is fundamentally about which institution decides that

balance—the Legislature or the judiciary. Our task in this case is not to decide

if we think these birth dates should be confidential. We are charged with

deciding whether the Legislature excepted dates of birth of public employees

from disclosure under section 552.101 of the PIA. I would hold that it did not.

The Court reaches the contrary result, not under section 552.101, but under

section 552.102, an issue the Comptroller did not raise in this Court and

expressly disclaims as a basis for its position that the information should be

protected. I respectfully dissent.

I. Factual and Procedural

History

On November 18, 2005, an editor with the Dallas Morning News (News)

submitted a PIA request to the Comptroller for an electronic copy of the Texas

state employee payroll database. The News requested the full name, birth date,

job description, agency, salary, race, sex, work

address, date of initial employment, pay rate, and work hours of every state

employee in the database. Contending that birth dates, certain salary

deductions, and an employee’s designation as a peace officer are protected from

disclosure under sections 552.101 and 552.108 of the Act, the Comptroller

submitted a timely request for an attorney general decision determining whether

those portions of the public information should be withheld. See Tex. Gov’t Code § 552.301

(mandating that a governmental body that wishes to withhold requested

information from public disclosure that it considers to be excepted from

disclosure under Subchapter C of the PIA must timely ask for a decision from the

attorney general). In an open records letter ruling, the Attorney General

concluded that public employees’ dates of birth are public information that must

be disclosed to the requestor. See Tex. Att’y

Gen. OR2006–01938.

Arguing that the release of the birth dates could lead to identity theft,

the Comptroller filed suit seeking declaratory relief from compliance with the

Attorney General’s letter ruling as provided by Subchapter H of the PIA. Tex. Gov’t Code §§ 552.321–.327. The News

intervened in the lawsuit and moved for partial summary judgment on the ground

that birth dates are not protected from disclosure by the PIA. The Comptroller

responded with a cross-motion for summary judgment, contending that the

information is protected as a matter of law or, alternatively, that the issue is

fact-intensive and not appropriate for summary judgment. The trial court granted

the News’s motion for partial summary judgment and denied the Comptroller’s

cross-motion for summary judgment. The Comptroller appealed arguing to withhold

the information under 552.101 and 552.102.

The Comptroller argued that the trial court erred in granting the News’s

partial summary judgment because the release of a public employee’s birth date,

in conjunction with his name, is a violation of the employee’s right of privacy.

The court of appeals held that the disclosure of state employees’ birth date

information would not violate any privacy interests, and thus was not protected

under section 552.101 of the PIA. 244 S.W.3d 629, 635 (Tex. App.—Austin 2008,

pet. granted). In this Court, however, the Comptroller narrowed her argument and

only argues that the birth dates are “confidential” under section 552.101 of the

PIA and thus excepted from the PIA’s mandatory

disclosure requirement. Section 552.101 provides that information is excepted from disclosure “if it is

information considered to be confidential by law, either constitutional,

statutory, or by judicial decision.” Tex. Gov’t Code § 552.101. The Comptroller

argues that birth date information is excepted as

confidential “by judicial decision” because the Texas common law privacy tort of

intrusion upon seclusion, described by this Court in Billings v.

Atkinson , creates a protected privacy interest in this information, thus

making it confidential. 489 S.W.2d 858 , 859–60 (Tex.

1973).

II. Preservation and Waiver: The Court Decides This Case

on an Issue

the Comptroller Expressly Disclaimed.

The Comptroller was asked at oral argument specifically if her position

included arguments under PIA section 552.102 and employing a balancing test to

determine whether to protect the birth dates from disclosure. Her counsel

responded:

Answer: I would say that we are

going solely under 552.101 . . . . We

are not advocating a balancing test . . . we don’t believe a balancing test is

applicable under this particular state regulatory system.

* * *

Question: There’s an argument that

552.102 is a stronger argument, but you’re not making that argument. I want to

be clear about that.

Answer: We are not making that

argument.

* * *

Answer: [A]

balancing test . . . is simply not found

in the PIA.

The Comptroller’s position on this

issue could not be clearer. She unequivocally limited her argument for

nondisclosure of birth dates of public employees “solely” to section 552.101 of

the PIA and shunned the application of a balancing test. Nevertheless, the Court

renders its decision not on section 552.101 of the PIA, but instead bases its

decision on section 552.102 and creates a balancing test to determine that the

information is excepted from

disclosure. The Comptroller presents neither argument and disclaims both. She

did not cite, much less discuss, section 552.102 in her petition for review or

brief on the merits, and, at oral argument, specifically disclaimed any reliance

on either section 552.102 or a balancing test.

On occasion, a case may present a court with a fine line between

adjudication and advocacy. However, we should remain on the side of adjudicating

only the issues presented, absent rare and extraordinary situations not

presented here. See In re B.L.D. , 113 S.W.3d 340 , 351–55 (Tex. 2003)

(recognizing that courts may review fundamental error not assigned). The

Legislature and the Attorney General have both decided as a matter of policy not

to protect dates of birth from disclosure, yet the Court shuns its substantial

precedents on waiver to reach the contrary policy. Moreover, the information the

Court protects has already in large part been disclosed. In the summary judgment

evidence, the News submitted an affidavit stating that it has received the state

employees database, including the dates of birth of the

employees, from the Comptroller’s office in response to previous requests for

the information.

Our rules of procedure require that a party present the issues to be

decided by this Court in the party’s petition and brief on the merits.

See Tex. R. App. P. 33.1, 53.2(f), 53.4, 55.2(f).

“[I] ssues not presented in the petition for review and

brief on the merits are waived.” Guitar Holding Co., L.P. v. Hudspeth Cnty . Underground Water Conservation Dist. No. 1. , 263

S.W.3d 910, 918 (Tex. 2008) (citing Tex.

R. App. P. 53.2(f)); Ramos v. Richardson , 228 S.W.3d 671, 673

(Tex. 2007) (per curiam ) (refusing to address an

argument raised in petitioners’ merits brief because petitioners failed to

advance it in their petition for review); City of Austin v. Travis Cnty . Landfill Co. , L.L.C. , 73 S.W.3d 234 , 241

n.2 (Tex. 2002) (precluding consideration of an argument raised below because the respondent disclaimed the argument

before the Supreme Court). “[W]e should not stretch for a reason to reverse that

was not raised.” Del Lago

Partners, Inc. v. Smith , 307 S.W.3d 762, 776 (Tex. 2010). This is

true even for constitutional issues. In re B.L.D. , 113

S.W.3d at 350–51. We make rare exceptions to our waiver rules to review

“fundamental error,” but only in situations related to preservation of

jurisdictional error and in “quasi-criminal” juvenile delinquency cases.

Id. The Comptroller does not allege fundamental error.

Waiver rules exist for good reasons. “[A] dhering to our preservation rules isn’t a mere technical

nicety; the interests at stake are too important to relax rules that serve a

critical purpose.” In re L.M.I. , 119 S.W.3d 707, 708

(Tex. 2003). The rules, among other things, prevent unfair surprise of

the other party and constrain us to perform our constitutional task to decide

only existing cases or controversies. See B.L.D. , 113 S.W.3d at 350 ;

L.M.I. , 119 S.W.3d at 710–11; see also Tex. Const . art. II, § 1; Brooks v.

Northglen Ass’n , 141

S.W.3d 158, 164 (Tex. 2004) (recognizing that the separation of powers clause in

article II, section 1 of the Texas Constitution bars this Court from issuing

advisory opinions). I dare say that the News will be surprised by the Court’s

deciding this case on a ground it was not given an opportunity to

address.

This is not a typical waiver case in which a party argues that it did

raise the issue or that it is fairly included in its petition and briefs. Not

only did the Comptroller choose not to raise or analyze the exception from

disclosure under section 552.102 in her petition or brief, her counsel

affirmatively disclaimed the argument at least four times at oral argument.

See supra at 5–6 (“[W]e are going solely under 552.101

. . . . We are not making that argument . . . .

We are not advocating a balancing test. . . . [A] balancing test . . . is simply not found in the

PIA.”).

The Court holds that the Comptroller properly withheld birth dates under

section 552.102. The Court’s reasoning for reaching the section 552.102 issue

is: “Given the unique circumstances of this case and the third party interests

at stake, we conclude that the Comptroller’s petition ‘fairly include[s]’ an

argument that section 552.102 applies. Tex. R. App. P. 53.2 (f).” ___ S.W.3d

___ (further citation omitted). That’s an odd conclusion when the beneficiary of

the ruling expressly disclaims that very argument. In essence, the Court holds

that the Comptroller’s section 552.101 argument fairly

includes the section 552.102 argument, and it will consider arguments the

Comptroller did not make.

The Court

indicates it acts on behalf of public employees who do not have a voice in this

dispute. But, the PIA provides a mechanism for the public employees affected to

submit their arguments to the Attorney General when considering a governmental

body’s decision not to disclose public information. The governmental entity

shall make a good faith attempt to notify such persons in writing of the request

for the attorney general decision and may then submit a brief with reasons why

the information should be withheld. Tex.

Gov’t Code §

552.305. Although the record indicates that the mechanism

was not utilized, the Court’s holding makes the provision irrelevant in this

case.

I disagree that the Court should disregard our rules on waiver to decide

an issue specifically and repeatedly disclaimed by the Comptroller, without any

allegation of fundamental error. Because the Court decides this case under

section 552.102, I note some concerns with that analysis. I also analyze this

dispute under the statutory framework raised and argued by the parties—whether

section 552.101 excepts state employees’ dates of birth

from disclosure.

III. Risk of

Identity Theft

Applying Section 552.102 and adopting a new balancing test articulated by

the U.S. Supreme Court in Department of the Air Force v. Rose , 425 U.S.

352, 372 (1976), the Court holds that the state employees’ privacy interests

substantially outweigh the public interest in disclosure. ___

S.W.3d ___.

A. The Sky Is Not Falling: The Court’s Characterization

of the

Privacy Interest at Stake Is

Overstated.

Section 552.102 excepts from disclosure

information in a personnel file “the disclosure of which would constitute a

clearly unwarranted invasion of personal privacy.” Tex. Gov’t Code § 552.102. The Rose

test, adopted today by this Court, balances an individual’s privacy claims

against the public interest in disclosure. Rose ,

425 U.S. at 372 . Because Congress only excepted from

disclosure information that constitutes a “clearly unwarranted” invasion of

privacy, federal courts have noted that the balance of disclosure interests

should be tilted in favor of disclosure and creates a “heavy burden” for an

agency invoking the exception. E.g., Morley v.

Cent. Intelligence Agency , 508 F.3d 1108, 1128 (D.C. Cir.

2007) (noting that the CIA had the burden to show withholding is necessary under

the federal Freedom of Information Act (FOIA) Exemption 6 for records pertaining

to a deceased CIA officer, and no privacy interest was articulated); Wash.

Post Co. v. U.S. Dep’t of Health & Hum. Servs . , 690 F.2d 252, 275 (D.C. Cir.

1982). The Court jumps on the bandwagon of a number of other states, or federal

trial courts, that have held that birth date

information may constitute a clearly unwarranted invasion of personal privacy.

While I am sensitive to the privacy rights of public employees and understand

the concern of the Court, I believe the Court’s reasoning is misguided for three

fundamental reasons.

First, the Legislature has not protected dates of birth of public

employees from disclosure. Birth dates by themselves are not private or

damaging. 5 The Court and the parties have recognized

as much. And the Restatement of Torts recognizes as much. Restatement (Second) of

Torts § 652D cmt . b (“Thus there is no liability for giving publicity to facts

about the plaintiff’s life that are matters of public record, such as the date

of his birth . . . .”). And even the U.S. Supreme Court has

recognized as much, reasoning that information that is “not intimate” such as

“place of birth, date of birth, date of marriage, employment history, and

comparable data” may be restricted only in the disclosure of a “personnel” or

“medical” file that itself would be a clearly unwarranted invasion of personal

privacy. U.S. Dep’t of State v. Wash. Post Co. , 456

U.S. 595, 600 (1982). “‘[C] ongress also made

clear that nonconfidential matter was not to be

insulated from disclosure merely because it was stored by an agency in its

“personnel” files.’” Id. at 601 (quoting Rose ,

425 U.S. at 372 ).

The Court points to no evidence that disclosure of birth dates would be

offensive to a reasonable person, would cause harm, or would lead to personal

harm. Instead, the Court holds, much more tenuously, that disclosure is harmful

because birth date information, “taken together” with other information, may “be

used to facilitate identity theft,” or may be used to locate a Social Security

number, which may be used to facilitate identity theft. ___ S.W.3d ___ (quoting

Hearst Corp. v. State , 882 N.Y.S.2d 862, 875 (N.Y. Sup. Ct. 2009)). In other words, the harm is not in the disclosure

of the birth date, but in the possibility that some evildoer may use a

birth date to gain other information (such as a social security number)

which he or she then may use to commit identity theft. Never before has

the Court held that information is not subject to disclosure under the PIA

because the information may lead to other information that may be used to cause

harm. By that logic, much information of a personal nature would be immune from

disclosure—names of public employees, dates of employment, home addresses. This

sort of information, taken together with other information, might lead to the

employee’s social security number and possibly to identity theft. While the

state has outlawed identity theft, and individuals may sue when others

misappropriate their private data, the Court should not allow subversion of the

open-government policies of the PIA under the risk that some of the public

information may later be misused.

As written, FOIA Exemption 6 (substantially identical to section 552.102)

likely only protects the information itself, not its derivative uses or problems

down the line.

Perhaps FOIA would be a more sensible law if the

Exemption applied whenever disclosure would “cause,” “produce,” or “lead to ” a

clearly unwarranted invasion of personal privacy—though the practical problems

in implementing such a provision would be considerable. That is not, however,

the statute Congress enacted. Since the question under 5 U.S.C. § 552 (b )( 6) is whether “disclosure” would “constitute a clearly

unwarranted invasion of personal privacy”; and since we have repeatedly held

that FOIA’s exemptions “‘must be narrowly construed,’” it is unavoidable that

the focus, in assessing a claim under Exemption 6, must be solely upon what the

requested information reveals, not upon what it might lead to . That result

is in accord with the general policy of FOIA, which we referred to in United

States Dept. of Justice v. Reporters Committee for Freedom of Press , 489

U.S. 749, 771 (1989) that the particular purposes for which a request is made

are irrelevant.

U.S. Dep’t of State v.

Ray , 502 U.S. 164 ,

180–81(1991) (Scalia, J., concurring) (emphasis added) (citations and quotations

omitted). Birth date information is not highly intimate or embarrassing; birth

dates are not generally included in “the type of information that a person would

ordinarily not wish to make known about himself or herself.” Assoc. Press.

v . U.S. Dep’t of Def. , 554 F.3d 274, 292 (2d Cir.

2009). If it had been raised, the text of section 552.102 does not require

consideration of derivative harm.

Interestingly, the Texas Identity Theft Enforcement and Protection Act

requires businesses to take reasonable steps to protect

“sensitive personal information” collected or maintained by the business in the

regular course. Tex. Bus. & Com. Code §

521.052. Sensitive personal information is generally an

individual’s name combined with any one or more of the following: social

security number, driver’s license number or government-issued identification

number, or account, credit card or debit card number. Id.

§ 521.002(a )( 2). The Legislature has not extended

this obligation to dates of birth. Id. 6 Notifications to others required by the

Identity Theft Act for breaches of computer security apply only when sensitive

personal information is reasonably believed to have been acquired by an

unauthorized person. Id. § 521.053. Again, the

Legislature did not include dates of birth in the same risk category with

sensitive personal information.

Second, the support relied on by the Court is far from conclusive. The

Court repeats general statements about birth date information but cites to and

provides no real data supporting the proposition that birth date information

truly leads to identity theft, or that the disclosure of someone’s birth date,

in and of itself, has caused any person to be the victim of identity theft. The

Court points to a study from Carnegie-Mellon University in which researchers

were able, with 60% accuracy , to determine the first six digits of

a person’s Social Security number when given the person’s date and location of

birth, for persons born after 1989 . ___ S.W.3d ___ (citing Alessandro

Acquisti & Ralph Gross, Predicting Social

Security Numbers From Public Data , 106 Proc. Nat’l Acad. Sci. 10975 (2009)).

Other scholarly and media reports and court cases cited by the Court repeat the

findings of the Acquisti and Gross study, or make

general statements that compilation of data can be more helpful to identity

thieves than data spread out through multiple sources, or that simply assert

that birth dates may lead to more private data. Neither the Court nor the

Comptroller cite any study positively demonstrating that release of birth date

information with a person’s name, without a social security number, makes it

significantly more likely that the person will be the victim of identity

theft. And neither cites any study evidencing an identity theft that began

through birth date information being disclosed in a public database.

Credible studies indicate that dates of birth are not the sin qua non

of identity theft. The most common form of identity theft arises from credit

card theft or check fraud, and the least common form arises from stolen social

security numbers or other personal information. Herb Weisbaum , Identity Theft Problem: The Facts Behind the

Fear , MSNBC ( Oct. 21, 2010, 7:42 AM)

http://www.msnbc.msn.com/id/39763386/ns/business-consumer_news/ (last visited

Dec. 1, 2010) (recognizing a recent report that the “most common form of

identity theft is . . . ‘old-fashioned credit card theft or check

fraud,’” with nearly all respondents to the survey recognizing that their

identity theft was due to stolen or misused credit or debit cards, and that a

hijacking of an identity using a “Social Security number and other basic

information” is the “least common form of identity fraud”). A recent study

published by the United States Federal Trade Commission reports that a thief’s

use of a social security number with a new name and false date of birth

currently accounts for 80–85 percent of all identity fraud. Lanny Britnell , Identity Theft America, The Changing Face of

Identity Theft , at 1, available at

http://www.ftc.gov/os/comments/creditreportfreezes/534030-00033.pdf; see also Synovate, Federal Trade Commission—2006

Identity Theft Survey Report 30 (Nov. 2007), available

at http://www.ftc.gov/os/2007/11/SynovateFinalReportIDTheft2006.pdf

(recognizing that 56 percent of victims did not know how their information was

stolen, and of the 43 percent of victims who did, many knew the thief

personally, had their identities stolen through a purchase or other transaction,

from a wallet, from a company that had the information, from hacking,

“phishing,” the mail, or some other way). The Attorney General’s office

indicated its strong desire to eliminate identity theft, but candidly

acknowledged at argument that there is “no firm evidence” that disclosure of

birth dates facilitates identity theft and confirmed that the PIA is not

intended to prohibit illegal use of data.

The information here is public information, and the connection between

the information being disclosed and the actual harm sought to be prevented is

too tenuous to support the judicial restrictions on disclosure of the public’s

information proffered by the Court when that same public information has been

shown to have positive benefits.

Finally, the privacy interest at stake here is lower than the Court makes

it out to be because much if not most of the information at issue has been

distributed by the state for years—in some instances for a fee. Texas sells

personal information under the Motor Vehicle Records Disclosure Act, including

names, addresses, dates of birth and driver’s license

numbers, to businesses, insurance companies, private investigatory agencies and other third parties, for a number

of specified purposes. See Tex.

Transp. Code §§ 730.007, .011 (permitting agencies to disclose the

personal information and to charge “reasonable fees for such disclosure”); Ryan

McNeill, ID Theft vs. Public Record at A1 (reporting that “private

companies spent nearly $50 million during the last fiscal year” buying Texas

drivers’ data). To the extent that Texas government employees have driver’s

licenses, it is likely that their dates of birth have either already been

released by a Texas governmental agency or sold to private entities, or both.

Even though the Transportation Code section has been in place for nearly 13

years, there is no evidence submitted indicating that information disclosed

through that mechanism has been a hotbed of identity theft. The State has sold

similar information on Texans with driver’s licenses for years, suggesting that

arguments that the same information about a subset of Texans will greatly

increase the possibility of identity theft ring hollow. This Act regulates the

use of motor vehicle information and allows disclosure of birth dates of all

Texas drivers, whether public or private employees, to

many private parties capable of disguising their true identities. And an

authorized recipient of this personal information is authorized to resell or

redisclose that information for permitted purposes.

Tex. Transp. Code

§ 730.013(b). 7 It is ironic that the Court cuts off free

access by the public under the PIA to the same public information that is being

sold under the Transportation Code.

B. The News

Has Established a “Sufficient Reason” for the Disclosure.

When personal privacy interests are at stake, the second part of the

Rose balancing test is whether the requestor has established a

“sufficient reason for the disclosure.” See Nat’l Archives & Records

Admin. v. Favish , 541 U.S. 157, 172 (2004). The

requesting party must establish “that the public interest sought to be advanced

is a significant one, an interest more specific than having the information for

its own sake. Second, the citizen must show the information is likely to advance

the interest. Otherwise, the invasion of privacy is unwarranted.”

Id.

The Court holds that the News loses under the balancing test because it

“has produced no evidence supporting government wrongdoing [and therefore] the

public interest in disclosure is negligible.” ___ S.W.3d ___ (citation omitted).

I disagree; the public interest in the information is demonstrated. The News

argues that it wishes to use the date of birth information to determine whether

particular governmental employees who work in or near children are convicted

felons or sex offenders. The News asserts a two-fold need for birth dates:

first, to determine whether governmental entities are employing sex offenders or

felons in jobs that may put children or the public at large at risk, and second, to confirm the identity of a particular

governmental employee who may have a criminal record. The News advises that some

2,000 employees of the State of Texas have the same first and last name. It is

reasonable and desirable that the media check the identities of these employees

before publishing unflattering facts about them. The News further advises that,

through its research, it was able to disclose in an article that over 250

employees of the Texas Youth Commission were convicted felons. See

McNeill, ID Theft vs. Public Record , at A1. These are legitimate and

productive uses of dates of birth.

No one doubts that citizens of this state have a right to know the names

of those who work for them in government. Neither party, nor the Court, disputes

that the News has the right to such names, and the names are easily available,

in electronic form, on various governmental websites and other databases. See, e.g. , Capitol Complex Telephone System (CCTS) Directory,

http://www.dir.state.tx.us/ccts/directory/index.html (last visited Dec. 1, 2010)

(listing the names, titles, and telephone numbers of employees working in or

near the Capitol). On the other hand, no one argues that state employees

give up all of their privacy rights simply by working as an unelected public

servant. But the disclosure of the birth dates in this case may actually help

preserve government workers’ privacy, by ensuring that any organization—media,

political, watchdog, financial, governmental, or otherwise—does not falsely

accuse those governmental employees of being persons they are not. This is

different from the data that the government collects about non-governmental

employees. Cf. U.S. Dep’t of Justice v. Reporters Comm. for Free Press ,

489 U.S. 749, 773 (1989) (concerning a FOIA request for criminal records of an

individual investigated by the FBI). The information at issue may actually

prevent mistaken identities and will help keep the government accountable for

those they hire.

But fundamentally, under the summary judgment procedures, the Court errs

by requiring evidence in the record that the News had no reason to provide in

the first place. At the trial court in her summary judgment motion, the

Comptroller argued that section 552.101 excepted birth

dates from disclosure under Industrial Foundation and the Texas common

law. Although the Comptroller mentioned that other courts had applied a

balancing test, she did not request that one be applied to the facts here.

Likewise, at the court of appeals, the Comptroller once again argued that

section 552.101 excepts public employees’ birth dates

from disclosure under common law and constitutional concepts. Rose , and

the balancing test now adopted by the Court, was not cited as a basis for the

Comptroller’s position before the court of appeals issued its opinion. The

Comptroller cited section 552.102 only in her reply brief at the court of appeal

to support the position that sections 552.101 and 552.102 “protect the same

privacy interests.” There was no need for the News to submit any evidence for

the trial court summary judgment proceedings showing a “significant” public

interest that the information is “likely to advance.” ___

S.W.3d ___ (citing Favish , 541 U.S. at

172 ). We cannot expect a party to present evidence for a standard

unknown, unargued , and unapplied below—another reason

we enforce our waiver rules. E.g. , Pirtle v. Gregory , 629 S.W.2d

919, 920 (Tex. 1982) (per curiam ) (noting that a party

should not “surprise his opponent on appeal by stating his complaint for the

first time”). At a minimum, this Court should remand the case to the trial court

for the parties to develop the record and argue the balancing test under the new

standard. Tex. R. App. P .

60.2(f), 60.3 (providing that this Court may remand for further proceedings in

light of changes in the law or in the interest of justice); Boyles v.

Kerr , 855 S.W.2d 593, 603 (Tex. 1993) (“We have broad discretion to remand

for a new trial in the interest of justice where it appears a party may have

proceeded under the wrong legal theory. Remand is particularly appropriate where

the losing party may have presented his or her case in reliance on controlling

precedent that was subsequently overruled.” ( citations

omitted)). Here, the successful party at trial relied on a standard that the

Court has now abandoned. Certainly the News should have an opportunity to make

its case under the new formula.

For these reasons, I would not decide this case under section 552.102 and

the Court’s balancing test. As discussed below, under the issue asserted by the

Comptroller, birth dates are not confidential under section 552.101.

IV. Disclosure

of Birth Date Information

The Comptroller argues that public employees’ dates of birth are

“confidential” under section 552.101 of the PIA. It is useful to understand the

PIA’s structure.

A. The Legislature’s Comprehensive Statutory Scheme for

Government Transparency

The stated policy of the PIA is to promote open government. “[I]t is the

policy of this state that each person is entitled, unless otherwise expressly

provided by law, at all times to complete information about the affairs of

government and the official acts of public officials and employees.” Tex. Gov’t Code § 552.001(a). “Public

information” includes information that is “collected, assembled, or maintained .

. . in connection with the transaction of official business” by a governmental

body. Id. § 552.002(a). In general, the PIA is

to be liberally construed in favor of granting requests for information. Id. § 552.001(b). Relative to other freedom of

information laws, such as FOIA, the Texas PIA more strongly favors transparency

and open government. See , e.g. , City of Garland v. Dallas

Morning News , 22 S.W.3d 351, 364 (Tex. 2000) (“Unlike the FOIA, our Act

contains a strong statement of public policy favoring public access to

governmental information and a statutory mandate to construe the Act to

implement that policy and to construe it in favor of granting a request for

information.”).

While the PIA provides an ardent statutory edict for openness in state

affairs, the Legislature has protected specified information from disclosure in

Subchapter C of the PIA. Tex. Gov’t Code §§ 552.101–.151. A

governmental agency is not required to disclose information excepted under Subchapter C of the PIA, but it may disclose

such information if it chooses, “unless the disclosure is expressly prohibited

by law or the information is confidential under law.” Id . § 552.007. Some examples of information that the

PIA excepts from disclosure include information that

would give advantage to a competitor or bidder, information in a student record

at an educational institution funded wholly or partly by state revenue, and the

social security number of a living person. Id .

§§ 552.104, .114(a), .147(a).

In addition to these exceptions, the Legislature created a special

category of information in the PIA— “confidential” information. Information that

is considered “confidential” is a subset of the information excepted from

disclosure. See id . § 552.101. But, unlike information that

is merely excepted from disclosure, the PIA prohibits the

disclosure of confidential information and makes its disclosure a crime

punishable by: “(1) a fine of not more than $1,000; (2) confinement in the

county jail for not more than six months; or (3) both the fine and confinement.”

Id. § 552.352. The Legislature specifically

identifies in the PIA some information that is considered confidential. 8 Outside of the PIA, no fewer than 100

Texas statutes classify information as confidential for purposes of the PIA. 9 Other statutes specifically limit the

scope of “confidential” information. For example, while section 552.147

generally excepts social security numbers of living

persons from disclosure, it also explicitly states that it “does not make the

social security number of a living person confidential under another provision

of this chapter or other law.” Tex.

Gov’t Code §

552.147. Other statutes, however, do make social security

numbers contained in specified records “confidential” and subject to criminal

penalties, such as on voter registration applications and in law enforcement

personnel records. See Tex. Elec. Code § 13.004(c);

Tex. Gov’t Code § 552.1175.

The text of the PIA indicates that the Legislature intended the word

“confidential” to have a specific meaning in the PIA, separating highly

sensitive information that is prohibited from disclosure (such as the

home address of a peace officer) from sensitive information that is merely

excepted from disclosure (such as information in a student record). The

PIA thus creates three distinct categories of public information—information

required to be disclosed, information excepted from mandatory (but not

voluntary) disclosure, and confidential information that is prohibited from

disclosure and subject to criminal penalties. 1 0 It is within this statutory framework

that I consider whether birth dates of public employees are considered to be

part of this third category of “confidential information.”

As a policy matter, it is admittedly undesirable to release information

about public employees that could lead to identity theft. States typically have

overwhelmingly addressed this issue by legislation. The Attorney General noted

that a number of other states have excepted birth date information in personnel

files from open records request disclosures in statutes. 1 1

The Texas Legislature has balanced the competing interests of open

government and individual privacy in deciding which types of public information

are excepted from disclosure in the PIA. This Court

previously acknowledged that this is the Legislature’s role. “Although we

recognize that there is often much potential for abuse of information in

government records, the task of balancing the public’s right of access to

government records 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.” Indus. Found. of the S. v. Tex. Indus.

Accident Bd. , 540 S.W.2d 668, 675 (Tex. 1976). The Legislature excepted

information for privacy reasons if it has been “considered to be confidential by

law, either constitutional, statutory, or by judicial decision.” Tex. Gov’t Code § 552.101. We are

constrained therefore not to apply a different, or more

expansive meaning of “confidential” for purposes of section 552.101 because it

might be good policy to prevent the disclosure of certain information. Our task

is to enforce the public’s right to access given by the PIA and adhere to the

language of section 552.101 and the statutory scheme set up by the PIA, “not to

second-guess the policy choices” that inform these statutes. See McIntyre v.

Ramirez , 109 S.W.3d 747, 748 (Tex.

2003).

Nowhere in the PIA has the Legislature specifically excepted general birth date information, birth date

information combined with other identifying information, or information the

disclosure of which is feared may lead to identity theft. The Legislature has

enacted specific statutes to protect against identity theft. See Tex. Bus. & Com. Code §§ 72.004,

521.001–523.053. My inquiry, then, is whether birth date information is

“confidential” pursuant to section 552.101.

B. Exception to Mandatory

Disclosure of Public Information Under

Section 552.101 of the

PIA

Section 552.101 of the PIA states that public information is excepted from the broad disclosure “requirements of Section

552.021 if it is information considered to be confidential . . . by judicial decision.”

Relying on the opinion in Industrial Foundation , the Comptroller argues

that the release of birth date information would violate the tort of intrusion

upon seclusion. Therefore, she argues, such information has been considered to

be confidential by the judicial decision in Billings v. Atkinson and is

excepted from disclosure by

section 552.101.

This Court’s only interpretation of section 552.101 was the subject of a

fractured opinion (a three justice plurality, two separate concurrences, and a

four justice dissent) in Industrial Foundation of the South v. Texas

Industrial Accident Board. , 540 S.W.2d 668, 675 (Tex. 1976). Despite the

various views of the Industrial Foundation Court, there was unanimity on

the proposition that the PIA does not give courts the discretion to secret

certain information from the public by creating new categories of confidential

information not protected by the terms of the PIA. In Industrial

Foundation , the petitioners argued that the Legislature intended section

552.101 “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.’” Indus. Found. , 540 S.W.2d

at 681 . The Court rejected that argument:

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 information 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.

Id . at 681–82; see also id .

at 691–92 ( Reavley , J.,

dissenting, joined by Steakley , Pope, and Denton,

JJ.) (“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. . . may be ‘deemed confidential’ . . . . It

was not the intention of the Legislature to turn over the administration of the

Open Records Act to the judiciary.”). In other words, courts do not have the

discretion to classify information as confidential on an ad hoc basis;

confidentiality of public information is to be determined by the terms of the

Act. To sanction the creation by courts of new types of protected information

not identified in the PIA would open the way for judicial amendment of the PIA.

Accordingly, I would interpret section 552.101 to deem confidential information

that was held by judicial decision to be confidential at or before the time of

the provision.

This approach would leave policy-making to the Legislature. It would also

provide certainty in the definition of confidential information so that

governmental entities and public officials may act accordingly. If courts

decided which public information is considered to be confidential on an ad

hoc basis, according to what individual jurists believe to be good policy, a

court could decide to make birth date information confidential under the PIA in

order to further the policy goal of preventing identity theft. An immediate

consequence of this might be the attachment of criminal penalties for the

disclosure, apparently even if unintended, of birth date information. See

note 10 . Government officials may be forced to redact all birth date

information disclosed to the public or face criminal penalties, even in records

that are decades old and currently made available to the public in, for example,

all the state courthouses in the two hundred fifty-four counties around the

state. 1 2 By limiting these determinations to

information that has already been considered confidential, such as information

the disclosure of which would violate the public disclosure tort, legislators

can enact policy in a careful, deliberate manner, often preventing the

substantial practical problems that may accompany judicial overstepping.

A majority of the court in Industrial Foundation looked to the

Court’s decision in Billings v. Atkinson , which recognized the tort of

public disclosure of private facts, in order to determine whether the

information at issue had been considered to be “confidential.” “We recognized in

Billings . . . 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 . . . .’” Indus. Found. , 540 S.W.2d

at 682 . The Court interpreted “confidential” according to its common

dictionary definition—“‘known only to a limited few: not publicly disseminated:

PRIVATE, SECRET.’” Id . at 683. The majority

reasoned that the characteristics of the dictionary definition of confidential

are “precisely the characteristics which information protected 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 . . . .” Id .

Billings explained that certain information is protected by the tort of

public disclosure. The majority opinion in Industrial Foundation held

that the Legislature intended to protect this same information from disclosure

under the PIA by excepting it as confidential (or

private) by the judicial decision in Billings . Thus, “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 publicizing of his private affairs,

then the information in those records should be deemed confidential by judicial

decision.” Id .

Reasonable minds may differ today as to the meaning of the phrase

“information considered to be confidential . . . by

judicial decision.” 1 3 But the Legislature has not amended this

section of the PIA in the thirty-seven years since that decision, and

Industrial Foundation is still our sole authority on the meaning of

section 552.101. Tex. Gov’t Code

§ 552.101; see Acts June 14, 1973, 63rd Leg., R.S., ch . 424, § 3, 1973 Tex. Gen. Laws 1112 , 1113. Respecting the

Legislature’s prerogative and the precedential value of the opinion in

Industrial Foundation , I would not extend it to create unintended

exceptions under the PIA.

C. The Comptroller’s Argument for Analysis under the Intrusion

upon Seclusion Tort

The Comptroller asks this Court to expand Industrial Foundation by

holding that if the disclosure of information would lead to a violation of the

privacy tort of intrusion upon seclusion, such

information should be considered to be confidential under section 552.101. The

Comptroller acknowledges that no judicial decision has ever held that

information is confidential because disclosure of such would violate the tort of

intrusion upon seclusion, and no Texas court has ever held that the intrusion

upon seclusion tort can be violated by a disclosure of information. Cf.

Valenzuela v. Aquino , 853 S.W.2d 512, 513 (Tex. 1993); Cornhill Ins.

PLC v. Valsamis , Inc. , 106 F.3d 80 , 85 (5th

Cir. 1997) (applying Texas law); Clayton v. Wisener , 190 S.W.3d 685 , 696–97 (Tex. App.—Tyler 2005,

no writ); Wilhite v. H.E. Butt Co. , 812

S.W.2d 1, 6 (Tex. App.—Corpus Christi 1991, no writ).

The elements of the torts of public disclosure of private facts (as

applied in Industrial Foundation ) and intrusion upon seclusion contain

important differences. The public disclosure tort has two elements: “information

[is] deemed confidential by law if (1) the information contains highly intimate

or embarrassing facts the publication of which would be highly objectionable

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

of legitimate concern to the public.” Indus. Found. , 540 S.W.2d at 685 . On the other hand, the intrusion tort’s

elements are: “(1) an intentional intrusion, physically or otherwise, upon

another’s solitude, seclusion, or private affairs or concerns, which (2) would

be highly offensive to a reasonable person.” Valenzuela , 853 S.W.2d at 513 .

The Comptroller attempts to expand section 552.101 to include as

confidential by judicial decision information that would be protected by the

intrusion upon seclusion tort. For this argument to succeed, the Court would

have to redefine the intrusion tort to include the disclosure of birth date

information that may lead to an intrusion (i.e. by an identity thief).

This connection is difficult to make. For instance, if a burglar enters your

house, reads through your private files and papers, and steals your credit cards

and identification, is the publisher of the phone book from which the burglar

obtained your address liable for the intrusion? The answer is, of course, no.

The tort of intrusion upon seclusion can only be committed by “[o]ne who

intentionally intrudes, physically or otherwise, upon the solitude or seclusion

of another or his private affairs or concerns.” Id . The tort is not

committed by one who unintentionally facilitates the possible intrusion.

Moreover, no Texas court has ever found a violation of the intrusion tort absent

a physical intrusion or surveillance upon the seclusion of another, and the Comptroller does not cite any judicial

decision that has ever made such a determination. Cf. Clayton , 190

S.W.3d at 696–97; Wilhite , 812 S.W.2d at 6 ; Valsamis , 106 F.3d at 85.

Industrial

Foundation is very

clear that the question is whether the disclosure itself, not the requestor’s

use of the information, would violate an individual’s right to privacy. “[I]f 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 publicizing of

his or her private affairs, then the information in those records should be

deemed confidential by judicial decision under . . . the

Act.” Indus. Found , 540 S.W.2d at 683 (emphasis added). Justice

Reavley , in dissent, also agreed that the Legislature

is “concerned with confidentiality entirely apart from the manner of use of the

information.” Id . at 692 ( Reavley , J., dissenting). The analysis should focus

on whether the government’s disclosure would violate the individual’s privacy.

For PIA tenets to apply based on the use rather than nature of the information

would require government entities to obtain the reasons why the information is

requested. This would contradict the clear prohibition in the PIA against

government inquiries into the purpose for the requested information. Tex. Gov’t Code § 552.222; A

& T Consultants, Inc. v. Sharp , 904 S.W.2d 668, 676 (Tex. 1995) (holding

that courts may neither consider purpose of the request nor inquire into how the

requestor intends to use the information).

The Comptroller’s argument for extending Industrial Foundation to

include an alternative analysis of section 552.101 using the intrusion upon

seclusion tort is not supported by the provisions of the PIA.

D.

Application of the Industrial Foundation

Test

The Industrial Foundation test holds that information “is excepted from mandatory disclosure

. . . as information deemed confidential by law if (1) the information contains

highly intimate or embarrassing facts the publication of which would be highly

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

legitimate concern to the public.” Indus. Found. , 540

S.W.2d at 685 . I first analyze whether birth date information is highly

intimate or embarrassing information, the publication of which would be highly

objectionable to a reasonable person.

The Court in Industrial Foundation analyzed information contained

in workers’ compensation files to determine whether it satisfied this element of

the tort. The Court reasoned that some information would satisfy the “highly

intimate” standard, 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; and claims of disability caused by physical or mental

abuse by co-employees or supervisors.

Id . at 683. This is the deeply personal, highly

intimate type of information the tort is meant to protect from publicity.

The Second Restatement of Torts also gives examples of information that

rises to the level of highly intimate or embarrassing. “Sexual relations, for

example, are normally entirely private matters, as are family quarrels, many

unpleasant or disgraceful or humiliating illnesses, most intimate personal

letters, most details of a man’s life in his home, and some of his past history

that he would rather forget.” Restatement (Second) of Torts § 652D

cmt . b (1977).

Contrasting this private information, the Restatement notes, “there is no

liability for giving publicity to facts about the plaintiff’s life that are

matters of public record, such as the date of his birth , the fact of his

marriage, [or] his military record . . . .” Id. (emphasis added).

The U.S. Court of Appeals for the Fifth Circuit, interpreting Texas law, came to

the same conclusion:

However, none of these items of information — middle

initial, age, street address, job title — can be characterized under Texas law

as “private” and “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.” Texas invasion of privacy law in this respect has been

guided by Prosser, Law of Torts § 117 (4th ed. 1971) and Restatement

(Second) of Torts § 652D. Prosser, supra , states “‘[t]he plaintiff

cannot complain when . . . publicity is given to matters such as the date of

his birth .’” Id . § 117 at 858 . . . . The Restatement (Second) of

Torts . . . is to the same effect . . . “[t]here is no liability for giving

publicity to facts about the plaintiff’s life . . . such as the date of his

birth . . . . ”

Johnson v. Sawyer , 47 F.3d 716 , 732–33 (5th Cir. 1995)

(citing Indus. Found. , 540 S.W.2d at 682–84) (further citations omitted)

(emphasis added). If disclosure of birth dates is held to violate the public

disclosure of private facts tort, the consequence to tort law would be to

potentially allow recovery for damages whenever someone publicizes information

as “highly intimate” as a birth date. The public disclosure tort was not meant

to protect such information from publicity. See

Johnson , 47 F.3d at 732 ; Restatement

(Second) of Torts § 652D cmt . b (1977).

The Comptroller argues that the combination of birth date information and

other identifying information, such as a name, rises to the level of “highly

intimate” justifying exclusion from disclosure. She argues that because birth

date information, in conjunction with this other information, can be used

to access sensitive information, such as a social security number, birth

date information itself is sensitive information. The argument casts too broad a

net and misses the essence of the inquiry. How otherwise public information is

used after disclosure does not guide the analysis of whether it is confidential

and excepted from disclosure under section 552.101. See Indus. Found. 540

S.W.2d at 692 ( Reavley , J., dissenting) (“I read the

Legislature to be concerned with confidentiality entirely apart from the manner

of use of the information.”). If that analysis were determinative, much of the

defined public information would be withheld because of a possibility or

likelihood of it being used itself or in conjunction with other public

information for inappropriate or illegal purposes. For example, that a person’s

business address, race, and gender could be used by a stalker to identify

and commit an assault at the person’s workplace, does not convert the work

address into confidential information. In addition, the public disclosure tort

focuses on the character of the information itself. Is it “highly intimate” such

that its mere publication would be objectionable to a reasonable person? See

Indus. Found. 540 S.W.2d at 683 . How the

information is used once it is made public, while of obvious concern to

policy-makers who balance the risks in writing statutes, does not drive the

analysis in interpreting section 552.101. Accordingly, public employees’ birth

dates do not constitute highly intimate or embarrassing facts the publication of

which would be highly objectionable to a reasonable person.

This information is also of legitimate public concern. The News contends

that birth date information ensures accuracy in identifying subjects of

newspaper articles, and the information has also been used to determine that

criminal offenders have been employed by some public school systems. The

Comptroller has offered no response to this contention. In any event, birth date

information does not satisfy the first requirement of the public disclosure

analysis, that the information contain highly intimate

or embarrassing facts the publication of which would be highly objectionable to

a reasonable person. I would conclude that the disclosure of birth date

information does not violate the public disclosure tort, and birth date

information is not confidential under section 552.101 of the PIA.

E. The

Balancing Test

The Court

applies a balancing test following the U.S. Supreme Court’s decision in Rose

v. Department of the Air Force , 425 U.S. 352 (1976), to hold that birth date

information is confidential under our PIA. In that case, the Supreme Court

interpreted Exemption 6 of FOIA, which excepts from

disclosure “personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal privacy.”

Id. at 370 (quoting 5 U.S.C. § 552 (b )( 6)).

The Court held that the language “clearly unwarranted invasion of personal

privacy” in the statute was a Congressional mandate for courts to balance “the

individual’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.’” Id. at 372 .

As noted above, the pivotal language in FOIA Exemption 6 is not contained

in section 552.101 of the Texas PIA. The Court should not create a balancing

test for the section 552.101 analysis when the language from which the test

arises (“clearly unwarranted invasion of personal privacy”) is not contained in

the relevant provision. See Indus. Found. , 540 S.W.2d at 681–82 (“Absent

[a provision with the “clearly unwarranted” language], we do not believe that a

court is free to balance the public’s interest in disclosure against the harm

resulting [from] disclosure.”). Therefore, the Court’s balancing test is

inappropriate here, and we should leave for another day whether a balancing test

is appropriate for any determination under section 552.102, or, as the Austin

Court of Appeals held in Hubert v. Harte-Hanks Texas Newspapers, Inc.

twenty-seven years ago, that the test is the same under both sections. 652 S.W.2d 546, 550 (Tex. App.—Austin 1983, writ ref’d n.r.e .).

IV. Fee

Shifting

The News also challenges the trial court’s refusal to award attorney’s

fees under the PIA and the Uniform Declaratory Judgment Act as an abuse of

discretion, based upon language in two sections of the PIA that were in effect

at the time of this suit but have subsequently been amended. Tex Gov’t Code §§ 552.323(b),

.324. 1 4 The Court did not address the issue at

length because the Comptroller prevailed. ___ S.W.3d

___. In my view, the News should prevail, but I would hold that the trial

court was correct in exercising its discretion in deciding whether to assess

attorney’s fees against the Comptroller. Because the Comptroller had a

legitimate concern over privacy issues relating to the disclosure of birth date

information under the PIA, she had a reasonable basis in law to refuse

disclosure of the information and the litigation was brought in good faith.

Accordingly, I concur in the judgment of the Court on the attorney’s fees

issue.

V.

Conclusion

The Legislature’s comprehensive statutory scheme that guarantees public

access to government information through the PIA, with selected exceptions, does

not make birth dates confidential under section 552.101. Because the Court

reaches a different result based on an issue the Comptroller waived, I

respectfully dissent. I concur in the judgment on the attorney’s fees

issue.

___________________________

Dale Wainwright

Justice

Opinion Delivered : December 3, 2010

1 Bills

submitted in the 2009 legislative session that would prevent disclosure of birth

dates of public employees failed to pass. Tex. S.B. 1912, 81st

Leg., R.S. (2009); Tex. H.B. 4207, 81st Leg., R.S. (2009). So there is

still no express preclusion on the requested disclosure of birth dates. There

are protections of birth dates in specific circumstances that are not before the

Court in this case. See, e.g. , Tex Gov’t Code § 552.1176; Tex Elec. Code § 13.004(d )( 4).

2 Ryan

McNeill, ID Theft vs. Public Record: State May Hide Workers’ Birthdates, but

It Sells Same Info on All Drivers , [hereinafter “McNeill, ID Theft vs.

Public Record ”] Dallas Morning News,

May 7, 2009, at A1, available at

http://www.dallasnews.com/sharedcontent/dws/dn/yahoolatestnews/stories/050709dnprodateofbirth.3fcf743.html

(reporting that “private companies spent nearly $50 million during the last

fiscal year” buying Texas drivers’ data, including birth dates).

3 See

McNeill, ID Theft vs. Public Record , at A1.

4 The

Identity Theft Enforcement and Protection Act prohibits

use of personal identifying information without the other person’s consent to

obtain anything of value in the other person’s name. Tex. Bus. & Com. Code

§ 521.051. Personal

identifying information includes name, social security number, date of birth or government-issued identification number.

Id. § 521.002(a )( 1). The penalties for violation

may be civil or, in certain types of credit card theft, criminal. Id. §§ 521.151, 522.002.

5 Unless,

of course, one is sensitive about one’s age. But if that were the case, then the

Comptroller’s release of employees’ ages would be just

as offensive as birth dates.

6

“Personal identifying information,” different from “sensitive personal

information,” includes date of birth. Tex. Gov’t Code § 521.002(a )( 1).

7 Prior

to 2001, the Transportation Code permitted agencies to distribute birth date

information “for bulk distribution for surveys, marketing, or solicitations”

provided that persons had the opportunity to opt-out and prohibit the uses.

Tex. Transp. Code

§ 730.007, repealed by Acts 2001, 77th

Leg., R.S., ch . 1032.

8

Examples include the home address, home telephone number, or social

security number of peace officers, county jailers, and current or former

employees of the Texas Department of Criminal Justice, among others; any

identifying information of a crime victim or claimant, including address and

social security number; credit card, debit card, charge card, or access device

number that is collected, assembled, or maintained by or for a governmental

body; and the social security number of applicants for a marriage license. Tex. Gov’t Code § 552.1175, .132, .136,

.141.

9 An

electronic search of Texas statutes returned 101 results in which certain

information was “confidential” and “not subject to disclosure” under the PIA.

Examples include certain records of teacher certification examinations ( Tex. Educ. Code § 21.048(c-1)), student

loan borrower records ( Tex. Educ. Code

§ 57.11(d)), child welfare service reports, ( Tex. Fam. Code § 264.613(a)), DNA records stored in the Department

of Public Safety DNA database ( Tex. Gov’t Code §

411.153(a)), the responses to exit interviews provided by departing government

workers (Tex. Gov’t Code §

651.007(g)), certain nursing home records ( Tex. Health & Safety Code §

242.134(a)), certain carrier contracts in the workers’ compensation system,

( Tex. Ins. Code § 1305.154(a)), social security numbers provided by

applicants for professional licenses ( Tex. Occ. Code §

59.001), pending proposals for comprehensive development agreements in

transportation projects ( Tex. Transp.

Code § 370.307(a)), and certain information relating to mineral, oil, and

gas leases ( Tex. Nat.

Res. Code §§ 52.190(d),

53.081(d)).

10 The

PIA may not criminalize all distribution of information designated

“confidential” in some manner in the statute. The penal provision of the PIA

makes distribution of information “considered confidential under the terms of

this chapter” a misdemeanor punishable by fine, confinement in county jail, or

both. Tex. Gov’t Code

§ 552.352(a).

Information “considered to be confidential by law” is “ excepted ” from the disclosure requirements of section

552.021. Id. § 552.101. We have not

addressed whether the “confidential” information referred to in section 552.021

is treated the same as the “confidential” information in section 552.352(a).

11 Tex.

Att’y Gen. OR2006-01938 (citing State Practices for

Classification of Date of Birth in Public Records (on file with Open Records

Division of the Office of the Attorney General)):

According to the survey,

states with an “unwarranted invasion of personal privacy” exemption in their

open records law protect date of birth information. See Haw. Rev. Stat . § 92F-13(1); 5 Ill. Comp.

Stat. 140/7(1 )( b); Kan. Stat. Ann. § 45-221(30); Ky. Rev. Stat. §

61.878(1 )( a); Mass. Gen. Laws Ann . ch . 66, § 10;

Mich. Comp. Laws Ann . § 15.243; N.H. Rev. Stat. Ann . § 91-A :5 ; N.J. Stat.

Ann . § 47:1A-10; N.Y. Pub. Off.

§ 89(2 )( b)(iv); Utah Code Ann. § 63-2-302(2)(d). One

state grants date of birth protection under a similar standard, “unreasonable

invasion of personal privacy.” See S.C. Code Ann. § 30-4-40(a )( 2). Several states protect date of birth information under

an exception for employee “personnel” records. See Ariz. Admin. Code

R2-5-105; Del. Code Ann .

tit. 29 § 10002; Kan. Stat. Ann. § 45-221(4); Iowa Code § 22.7; Md. Code Ann., State

Gov’t § 10-616(h )( 2)(I); Miss. Code Ann. § 25-1-100; N.D. Cent. Code §

44-04-18.1; Or. Rev.

Stat. § 192.502(3); R.I. Gen. Laws

§ 38-2-2; Va. Code Ann. § 2.2-3705.1(1);

Wyo. Stat. Ann. § 16-4-203. The state of

Georgia protects employee date of birth information under a statute that

specifically makes confidential date of birth information “if technically

feasible at a reasonable cost.” See Ga. Code Ann . § 50-18-72(a )11.3 (A). Several states protect date of birth information by

unofficial policy. Finally, the state of Washington protects date of birth

information under a state plan to curtail identity theft.

12 An

example of the scope of unintended consequences and potential harm of such a

seemingly simple act of making birth date information confidential was shown

recently when an attorney general opinion opined that social security numbers

are confidential. Tex. Att’y Gen.

Op. No. GA-0519 (2007). District and county

court clerks around the state uniformly petitioned for relief because their

provision of access to the social security numbers in the public records of the

numerous courts they serve potentially subjected them to criminal penalties. The

Attorney General’s office abated its opinion and the Legislature swiftly and

unanimously passed a statute expressly providing that Social Security numbers

are not confidential. See Tex.

Gov’t Code 552.147(a).

13

See , e.g. , Indus. Found., 540 S.W.2d at 688 (Daniel,

J., concurring) (“It is my opinion that . . . the Legislature did not intend [the

Open Records Act] to be as broad as it was written.”); id . (Johnson, J.,

concurring) (“Since a majority of this court has concluded that Rule 9.040

of the Industrial Accident Board is invalid . . . 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.”); id . at

691–92 ( Reavley , J., dissenting) (“I doubt that we are

entitled to read this intent into the Legislature’s use of ‘confidential.’

. . . It was not the intention of the Legislature to turn over the

administration of the Open Records Act to the judiciary. I 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.”).

14 Each

of these sections has since been amended, clarifying the attorney’s fees issue.

The Legislature moved the cause of action from Texas Government Code section

552.353(b )( 3) to 552.324. The amended section 552.324

now reads:

(a) The only suit a governmental body may file seeking to

withhold information from a requestor is a suit

that:

(1) is filed in a Travis County district court against the

attorney general in accordance with Section 552.325; and

(2) seeks declaratory relief from

compliance with a decision by the attorney general issued under Subchapter G.

(b) The

governmental body must bring the suit not later than the 30th calendar day after

the date the governmental body receives the decision of the attorney general

determining that the requested information must be disclosed to the requestor . If the governmental body does not bring suit

within that period, the governmental body shall comply with the decision of the

attorney general. If a governmental body wishes to preserve an affirmative

defense for its officer for public information as provided in Section

552.353(b)(3), suit must be filed within the deadline provided in Section

552.353(b)(3) .

Tex. Gov’t Code § 552.324. Section

552.353(b )( 3) now reads:

(b) It is an

affirmative defense to prosecution under Subsection (a) that the officer for

public information reasonably believed that public access to the requested

information was not required and that:

(3) not later

than the 10th calendar day after the date of receipt of a decision by the

attorney general that the information is public, the officer or the governmental

body for whom the defendant is the officer for public information filed a

petition for a declaratory judgment against the attorney general in a Travis

County district court seeking relief from compliance with the decision of the

attorney general, as provided by Section 552.324, and the cause is pending.

Id . § 552.353(b )( 3). And section 552.323(b) now explicitly allows the trial

court to shift fees in an action under section 552.324:

(b) In an

action brought under Section 552.324, the court may assess costs of litigation

and reasonable attorney’s fees incurred by a plaintiff or defendant who

substantially prevails. . . .

Id .

§ 552.323(b). This new statutory scheme should prevent the confusion

found here from occurring in future cases.