Texas Comptroller of Public Accounts// the Dallas Morning News v. Attorney General of Texas// Cross-Appellee, Texas Comptroller of Public Accounts

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00102-CV

Appellant, Texas Comptroller of Public Accounts // Cross-Appellant,

The Dallas Morning News

v.

Appellee, Attorney General of Texas // Cross-Appellee,

Texas Comptroller of Public Accounts

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. D-1-GN-06-001120, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

OPINION

This appeal concerns whether state employees’ dates of birth must be disclosed

pursuant to a request for information under the Texas Public Information Act. See Tex. Gov’t Code

Ann. §§ 552.001-.353 (West 2004 & Supp. 2007) (the “Act”). An editor from The

Dallas Morning News requested a copy of the state employee payroll database from the Texas

Comptroller of Public Accounts (the “Comptroller”). The Comptroller believed that certain

information contained in the database, including date-of-birth information, was confidential and

sought an opinion from the Attorney General as to whether its disclosure was required. The Attorney

General concluded that a state employee’s date of birth is public information that is subject to

disclosure under the Act. The Comptroller contested the Attorney General’s decision and filed suit

against the Attorney General in district court. The Dallas Morning News, Ltd. (the “News”)

intervened. The district court agreed with the Attorney General, finding that date-of-birth

information is public information and is therefore subject to disclosure under the Act, but denied the

News’s request for attorney’s fees. Both the Comptroller and the News appealed. We affirm the

judgment of the district court.

BACKGROUND

On November 18, 2005, an editor from The Dallas Morning News submitted a request

to the Comptroller for an electronic copy of the Texas state employee payroll database. Believing

some of the information contained in the database to be confidential and thus protected from

disclosure under sections 552.101, 552.102, and 552.108 of the Act, the Comptroller submitted a

timely request for an attorney general decision determining whether those portions were excepted

from disclosure.1 See Tex. Gov’t Code Ann. § 552.301 (West 2004). In an open records letter

ruling, the Attorney General concluded that employee date-of-birth information is public information

that must be disclosed to the requestor. See Tex. Att’y Gen. OR2006-09138.2

In response, the Comptroller filed suit under section 552.324 of the Act and the

Uniform Declaratory Judgments Act (“UDJA”) seeking declaratory relief from compliance with the

Attorney General’s letter ruling. See Tex. Gov’t Code Ann. § 552.324 (West 2004);

Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 1997 & Supp. 2007). The Comptroller

alleged in its petition that (1) the Attorney General had failed to apply the appropriate standards for

1

In addition to date-of-birth information, the Comptroller claimed that certain salary

deductions and an employee’s designation as a peace officer were confidential.

2

The letter ruling addressed together the News’s request and a request for the state

employee payroll database from another entity that is not a party to this appeal.

2

state employees’ privacy rights under sections 552.101 and 552.102 of the Act, in accordance with

Texas common law and the constitution and (2) the Attorney General erred in failing to properly

apply the so-called “exceptional circumstances” test, which recognizes that special circumstances

may exist to warrant protecting some public information from disclosure. See Tex. Att’y Gen. ORD-

123 (1976).3

The News filed a plea in intervention and moved for partial summary judgment on

the grounds that date-of-birth information is not protected by the Act, the common-law right of

privacy, or the constitutional right of privacy as a matter of law and that “the vague threat of identity

theft does not constitute ‘exceptional circumstances’” sufficient to prevent disclosure. The

Comptroller responded with a cross-motion for summary judgment, contending that date-of-birth

information is protected by both common-law and constitutional rights to privacy 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 News filed a second motion for

summary judgment seeking attorney’s fees under section 552.353(b)(3) of the Act and section 37.009

of the UDJA, which the trial court denied. Both the Comptroller and the News appealed.

3

According to the Comptroller, the exceptional-circumstances analysis should dictate that

even if state employees’ date-of-birth information is public information, the threat that disclosure

could lead to identity theft constitutes a special circumstance counseling against its release.

However, while continuing to argue that the threat of identity theft is a relevant consideration that

should prevent the disclosure of dates of birth, the Comptroller has not raised its “exceptional

circumstances” argument on appeal.

3

In a single issue on appeal, the Comptroller argues 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 his right of privacy. In two issues on cross-appeal, the

News contends that the trial court erred in failing to grant its motion for summary judgment on the

issue of attorney’s fees under the Act and under the UDJA.

STANDARDS OF REVIEW

Summary judgment is proper where the movant establishes that there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a matter of law on the

issues expressly set out in the motion. Tex. R. Civ. P. 166a(c). We review the summary judgment

de novo, take as true all evidence favorable to the nonmovant, and indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005).

On cross-motions for summary judgment, each party bears the burden of establishing

that it is entitled to judgment as a matter of law. See City of Garland v. Dallas Morning News,

22 S.W.3d 351, 356 (Tex. 2000). When, as here, both parties move for summary judgment on the

same issue and the trial court grants one motion and denies the other, the reviewing court considers

the summary-judgment evidence presented by both sides, determines all questions presented, and

if the reviewing court finds that the trial court erred, renders the judgment that the trial court should

have rendered. Valence, 164 S.W.3d at 661; Commissioners Court of Titus County v. Agan,

940 S.W.2d 77, 81 (Tex. 1997).

4

Issues of statutory construction are questions of law and are reviewed de novo.

Liberty Mut. Ins. Co. v. Texas Dep’t of Ins., 187 S.W.3d 808, 819 (Tex. App.—Austin 2006,

pet. denied). Specifically, whether information is subject to the Act and whether an exception to

disclosure applies to the information are questions of law. See City of Garland, 22 S.W.3d at 357;

A & T Consultants v. Sharp, 904 S.W.2d 668, 674 (Tex. 1995).

The News sought attorney’s fees under section 552.353(b)(3) of the Act and section

37.009 of the UDJA. Because the Act dictates that the trial court’s decision to award attorney’s fees

in an action under section 552.353(b)(3) is discretionary, see Tex. Gov’t Code Ann. § 552.323

(West 2004), we review that decision for an abuse of discretion. See Bocquet v. Herring,

972 S.W.2d 19, 20-21 (Tex. 1998) (and cases cited therein, explaining that where statutes provide

court “may” award attorney’s fees, decision to grant or deny attorney’s fees is discretionary and

reviewed on appeal for abuse of discretion). Likewise, a trial court’s judgment in granting or

denying attorney’s fees in a declaratory-judgment action under the UDJA is reviewed on appeal for

an abuse of discretion. Neeley v. West Orange-Cove Consol. Indep. Sch. Dist. 228 S.W.3d 864, 867

(Tex. App.—Austin 2007, pet. denied); Florey v. Estate of McConnell, 212 S.W.3d 439, 447

(Tex. App.—Austin 2006, pet. denied). A trial court abuses its discretion when it acts without

reference to any guiding rules or principles, not when it simply exercises that discretion in a different

manner than reviewing appellate courts might. Low v. Henry, 221 S.W.3d 609, 619 (Tex. 2007).

DISCUSSION

Under the Act, “public information” is information that is “collected, assembled, or

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

5

Tex. Gov’t Code Ann. § 552.002(a) (West 2004). The Act does not limit the availability of public

information except as expressly provided. See id. § 552.006; Arlington Indep. Sch.

Dist. v. Texas Attorney Gen., 37 S.W.3d 152, 157 (Tex. App.—Austin 2001, no pet.). The Act is

to be liberally construed in favor of granting requests for information. Tex. Gov’t Code Ann.

§ 552.001(b) (West 2004). A governmental body seeking to withhold requested information must

submit a timely request for a determination from the Attorney General, asserting which exceptions

to disclosure in subchapter C of the Act apply to the requested information. Id. § 552.301.

Exceptions to the Act are narrowly construed. Arlington I.S.D., 37 S.W.3d at 157.

It is undisputed that state employees’ dates of birth are public information because

they are collected and maintained by the Comptroller’s office in connection with its official business.

The only issue is whether date-of-birth information falls within an exception under subchapter C.

Where, as here, a governmental body disagrees with the Attorney General’s

determination that information is not excepted from disclosure, the only suit the governmental body

may file seeking to withhold the information is a suit against the Attorney General challenging that

determination. See Tex. Gov’t Code Ann. § 552.324 (West 2004). The requestor is entitled to

intervene in the suit. Id. § 552.325.

The Comptroller complied with these procedures, asserting that employee date-of-

birth information is excepted from disclosure under the confidential-information exception in

subchapter C, section 552.101. 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.” See id. § 552.101. The Comptroller maintains that date-of-birth

6

information is considered to be confidential (1) under the common law and, therefore, “by judicial

decision” and (2) under the Texas constitutional right to privacy.

We hold that date-of-birth information is not confidential and that the state employee

date-of-birth information contained in the state employee payroll database must be disclosed

pursuant to the News’s request.

Common-law right of privacy

The Comptroller maintains that date-of-birth information is expressly excepted from

disclosure under the Act because it is information considered to be confidential by judicial decision

under the Texas common-law right of privacy. See id.

It is not entirely clear which judicially recognized privacy interest the Comptroller

is relying upon in order to establish that date-of-birth information is considered to be confidential

by judicial decision. Texas courts recognize three separate types of invasion of privacy:

(1) intrusion upon one’s seclusion or solitude or into one’s private affairs, (2) public disclosure of

embarrassing private facts, and (3) wrongful appropriation of one’s name or likeness.4 See Cain

v. Hearst Corp., 878 S.W.2d 577, 578 (Tex. 1994); Industrial Found. of the S. v. Texas

Indus. Accident Bd., 540 S.W.2d 668, 682 (Tex. 1976) (quoting William L. Prosser, Privacy,

48 Cal. L. Rev. 383, 389 (1960)).

4

The Comptroller apparently concedes that wrongful appropriation is not at issue in this

case, having cited to no authorities or anything in the record indicating that this theory provides a

basis for finding that employees’ birth dates are confidential.

7

Intrusion upon seclusion was recognized by the Texas Supreme Court in Billings

v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973). Public disclosure of private facts was articulated by

the Court in Industrial Foundation, 540 S.W.2d at 682-83. In its opening brief, the Comptroller

states, “it is the Billings’ analysis which should be applied here and not the Industrial Foundation’s

analysis.” However, in its reply brief, the Comptroller maintains that the “sole criteria for

determining whether information is exempt from disclosure as ‘confidential by judicial decision

[under the PIA]’ is whether the information is of legitimate public concern and whether its

publication would be highly objectionable to a reasonable person,” which is the test for public

disclosure of private facts developed in Industrial Foundation.5

The News asserts in response that the Comptroller has “shifted” privacy theories in

support of its confidentiality claim, “abandon[ing] its privacy theory based upon the public revelation

of highly intimate and embarrassing private facts” and asserting a new legal theory, intrusion upon

seclusion, for the first time on appeal. As a result, the News argues, the Comptroller’s theory of

public revelation of private facts is not before this Court, and the Comptroller is barred from arguing

its intrusion-upon-seclusion theory because it was never presented to the trial court.

While the Comptroller’s arguments on this issue are somewhat difficult to discern,

“it is our practice to construe liberally points of error in order to obtain a just, fair, and equitable

adjudication of the rights of the litigants.” See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690

5

In an attempt to reconcile the apparent contradiction in its written submissions as to which

privacy right or rights apply in this case, the Comptroller stated at oral argument that the Billings

analysis “controls,” but because that case was not decided under the Act, we must also consider

Industrial Foundation.

8

(Tex. 1989); see also Tex. R. App. P. 38.1(e) (“The statement of an issue or point will be treated as

covering every subsidiary question that is fairly included.”). From our review of the record, we find

that the Comptroller’s issue on appeal—that the disclosure of state employees’ birth dates would

violate the confidential-information exception set forth in section 552.101 of the Act—is the same

argument raised in its original petition and cross-motion for summary judgment. That issue

necessarily requires us to determine the subsidiary question of whether date-of-birth information has

in fact been made confidential by judicial decision, to which we now turn.

Intrusion upon seclusion

An unwarranted intrusion upon seclusion is proved by showing (1) an intentional

intrusion, physical or otherwise, upon another’s solitude, seclusion, or private affairs or concerns,

(2) that the intrusion would be highly offensive to a reasonable person, and (3) that the person

suffered an injury as a result of the intrusion. Valenzuela v. Aquino, 853 S.W.2d 512, 513

(Tex. 1993). Intrusion upon seclusion is “typically associated with either a physical invasion of a

person’s property or eavesdropping on another’s conversation with the aid of wiretaps, microphones,

or spying.” Clayton v. Wisener, 190 S.W.3d 685, 696 (Tex. App.—Tyler 2005, no pet.);

GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 618 (Tex. App.—Houston

[14th Dist.] 2001, pet. denied).

The Comptroller cites no authority, nor have we found any, where a Texas court

determined that a party suffered an intrusion upon his seclusion absent evidence of a physical

invasion or eavesdropping. On the contrary, several courts have held that the party could not recover

because he did not allege that a physical invasion or eavesdropping took place. See, e.g., Clayton,

9

190 S.W.3d at 697; Wilhite v. H.E. Butt Co., 812 S.W.2d 1, 6 (Tex. App.—Corpus Christi 1991,

no writ), overruled on other grounds, Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994); see also

Cornhill Ins. PLC v. Valsamis, 106 F.3d 80, 85 (5th Cir. 1997) (applying Texas law).

Assuming without deciding that this privacy interest can be violated even though

there has been no physical invasion or eavesdropping, the Comptroller has not shown that releasing

date-of-birth information constitutes an intentional intrusion upon state employees’ seclusion or

private affairs that would be highly offensive to a reasonable person. The Comptroller’s unsupported

assertions that one’s birth date “is certainly part of one’s private affairs” and that “most reasonable

people would find it highly objectionable to be at risk for the type of attention that the release of this

information is likely to bring their way” do not establish that date-of-birth information has been

made confidential as a matter of law.

Nor does the Comptroller’s summary-judgment evidence raise a fact issue as to

whether granting the News’s request for information would be an intrusion upon state employees’

seclusion.6 The Comptroller argues that the evidence proves that “[g]overnment employees are

aware, as is the public in general, that the more personal information publicly available about them,

the more likely they are to be a victim of identity theft or marketing companies.” Their awareness

6

The Comptroller submitted affidavits from several state employees, including (1) a Texas

Education Agency employee who stated that she has been the victim of identity theft and requested

that her date of birth not be released; (2) a Texas Department of Public Safety highway patrolman

who stated that law enforcement personnel accept as true the name and birth-date information given

to them by a person stopped for a traffic violation when that person does not present a driver’s

license; and (3) a crime analyst at the Department of Public Safety who stated that information in

the request submitted by the News can be matched with other information available on the Internet

to commit fraud and identity theft.

10

is not at issue; the Comptroller has merely shown that some state employees are concerned about the

potential misuse of date-of-birth information. This is not evidence that the release of state

employees’ dates of birth to the News is an invasion of their privacy or that it will result in the

commission of identity theft. We agree with the Attorney General and the News that the speculative

and unproven threat of identity theft is insufficient to exempt date-of-birth information from

disclosure under the Act.

Even if the Comptroller had shown that the release of state employees’ dates of birth

is an intentional intrusion upon the employees’ private affairs, the Comptroller has provided no

argument or authority suggesting that the release of that information would be highly objectionable

to a reasonable person. Instead, the Comptroller argues that date-of-birth information, if made

available, might be misused in connection with other identifying information to commit

identity theft.

This argument must fail because the Act precludes an inquiry into the intended use,

or potential misuse, of the information requested. See Tex. Gov’t Code Ann. § 552.222

(West 2004); A & T Consultants, 904 S.W.2d at 676 (“we may not consider the requesting party’s

purpose or use for the information”); Industrial Found., 540 S.W.2d at 686 (“the Act prohibits

consideration of the motives of the requesting party in determining whether information must be

disclosed”). Because we cannot engage in a factual inquiry into what use the information will or

might be put, see A & T Consultants, 904 S.W.2d at 676, the question of whether it is highly

objectionable to be a victim of identity theft is not before us. Moreover, the Act does not permit

public information to be withheld because it might be used in conjunction with other publicly

11

available information, thereby allowing the requestor to deduce confidential information. See id.

In light of A & T Consultants, the Comptroller cannot declare that date-of-birth information is

confidential because it might be used with other information available on the Internet to

commit identity theft.

The Comptroller therefore failed to establish as a matter of law that the release of

state employees’ dates of birth is an intrusion upon their seclusion entitling the information to be

withheld under the confidential-information exception of the Act.

Public disclosure of embarrassing private facts

The Comptroller also alleges that state employees’ date-of-birth information is

confidential because its release would constitute the public disclosure of embarrassing private facts.

See Industrial Found., 540 S.W.2d at 682. Under this theory of recovery, the injured party “must

show (1) that publicity was given to matters concerning his private life, (2) the publication of which

would be highly offensive to a reasonable person of ordinary sensibilities, and (3) that the matter

publicized is not of legitimate public concern.” Id. The Industrial Foundation court interpreted

these requirements to mean that the information must 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.” Id. at 683.

The Comptroller has not shown that a state employee’s date of birth is a highly

intimate or embarrassing fact, but argues instead that the use to which someone would put that

information—namely, by committing identity theft—would be highly objectionable. However, as

we have already discussed, the purported use of the information and the purpose of the requestor

12

cannot be considered when determining whether public information is subject to an exception from

disclosure. Absent any evidence that a person’s date of birth is “highly intimate” or “embarrassing,”

we do not agree with the Comptroller that the information is excepted from disclosure.

The information at issue in Industrial Foundation illustrates the sort of information

that is considered to be highly intimate or embarrassing. In that case, the Texas Industrial Accident

Board claimed that certain of its workman’s compensation claim files were confidential because the

files contained matters of “extreme privacy which, if released, would cause extreme embarrassment

to the claimant.” Id. at 683. Examples cited by the Board included a claim for injuries arising from

sexual assault, death benefit claims on behalf of illegitimate children, claims for psychiatric

treatment of mental disorders, claims for injuries to sexual organs, and a claim for injuries stemming

from an attempted suicide. Id. The supreme court agreed with the Board that at least some of these

claims were “of such a nature that their publication would be highly offensive to a

reasonable person.” Id.

An employee’s date of birth, if known to the general public, is neither highly intimate

nor embarrassing. Therefore, we need not consider whether the information sought is of legitimate

concern to the public, and we conclude that its release would not constitute the public disclosure of

embarrassing private facts.7

7

We further note that the third element of the test, whether the matter is of a legitimate

public concern, does not require the court to balance the interests at stake, as the Comptroller argues.

The legislature has already determined the weight that competing interests should be afforded in

drafting the Act and narrowly circumscribing any and all exceptions to disclosure. See Industrial

Found. of the S. v. Texas Indus. Accident Bd., 540 S.W.2d 668, 675-76 (Tex. 1976). Properly

applying the statutory scheme will result in the proper balancing of an individual’s right to privacy.

See id.; Hubert v. Harte-Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 550

(Tex. App.—Austin 1983, writ ref’d n.r.e.).

13

Because the disclosure of state employees’ date-of-birth information would not

violate any of the privacy interests alleged by the Comptroller, we hold that date-of-birth information

has not been made confidential by judicial decision.

Constitutional right to privacy

The Comptroller further argues that date-of-birth information is protected from

disclosure under the Texas Constitution. Article I, sections 9 and 25 protect personal privacy from

unreasonable intrusion. See Texas State Employees Union v. Texas Dep’t of

Mental Health & Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987). “This right to privacy

should yield only when the government can demonstrate that an intrusion is reasonably warranted

for the achievement of a compelling governmental objective that can be achieved by no less

intrusive, more reasonable means.” Id. Applying the balancing test from Texas State

Employees Union in this case, the Comptroller argues that “the government’s interest in disclosing

its employees’ birthdate is indiscernible, but the employees’ privacy interest is obvious.”

The News responds by pointing out that only information pertaining to activities and

experiences within a recognized “zone of privacy” is protected by the constitutional right of privacy.

See, e.g., Industrial Found., 540 S.W.2d at 680-81 (“the State’s right to make available for public

inspection 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 a zone of privacy . . . .”). Arguing that the only recognized zones of privacy concern “marriage,

procreation, abortion, child rearing and family relationships,” see id. at 681, the News maintains that

“[n]o Texas court . . . has ever found that state employees’ date of birth information falls within the

14

zone of privacy protected by constitutional law.” We agree. Moreover, the Comptroller’s reliance

on Texas State Employees Union is misplaced.

Texas State Employees Union was a case decided under the constitutional right to

privacy dealing with a mandatory polygraph policy that the mental health department had instituted.

746 S.W.2d at 204. Under the policy, employees were subject to “adverse personnel action” if they

refused to submit to a polygraph examination during the course of an investigation of suspected

patient abuse or other criminal activity on the department’s facilities. Id. In addition to job

performance-related issues, the examination involved asking such control questions as: “Do

members of your family smoke dope?” “Have you stolen anything in your life or in the last ten

years?” “Have you beaten your kids?” Id.

The court did not expressly engage in an analysis as to whether the polygraph

examination violated any interest within a recognized zone of privacy. However, based on the highly

intimate and embarrassing nature of the questions posed during the examination, the court concluded

that the “polygraph policy itself undoubtedly implicates the privacy rights of its employees.” Id. at

206. This is consistent with the right-of-privacy jurisprudence recognizing that personal matters

outside a recognized zone of privacy may be protected under the constitution if those matters concern

the most intimate aspects of human affairs. See, e.g., Ramie v. City of Hedwig Vill., 765 F.2d 490,

492 (5th Cir. 1985). Thus, in holding that the right of privacy was “undoubtedly” implicated by

questions concerning the nature of intimate family relationships, drug use, and criminal history

unrelated to on-the-job performance, the Texas State Employees Union court determined that the

state was therefore required to provide a compelling interest for intruding upon employees’ privacy.

15

The same cannot be said in this case. The Comptroller has not shown that date-of-

birth information falls within a recognized zone of privacy, nor has it produced any evidence that

a person’s birth date is an intimate or embarrassing fact or that its disclosure would be highly

objectionable to a reasonable person. The nature of the information at issue in Texas State

Employees Union, besides closely relating to constitutionally recognized zones of privacy, was

highly intimate and embarrassing. There is no dispute that the average person would find it

objectionable for the sort of information at issue in Texas State Employees Union to be made public.

Because the Comptroller has failed to show, as a threshold matter, that the disclosure of a state

employee’s date of birth would constitute an intrusion upon his right of privacy, we need not

consider whether the disclosure is reasonably warranted for the achievement of a

compelling objective.

Summary judgment was therefore properly granted in favor of the News on the

ground that date-of-birth information is not protected under the constitutional right to privacy.

Attorney’s fees

On cross-appeal, the News argues that the trial court erred in failing to award

attorney’s fees under the section 552.323 of the Act and section 37.009 of the UDJA.

Section 552.323 of the Act

With respect to the award of attorney’s fees, the Act provides:

In an action brought under Section 552.353(b)(3), the court may assess costs of

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

substantially prevails. In exercising its discretion under this subsection, the court

shall consider whether the conduct of the officer for public information of the

governmental body had a reasonable basis in law and whether the litigation was

brought in good faith.

16

Tex. Gov’t Code Ann. § 552.323(b) (West 2004).

The News argues that it is entitled to recover its attorney’s fees because it showed that

(1) the action was brought under section 552.353(b)(3); (2) as a defendant, it was the party that

substantially prevailed; and (3) the officer for public information of the governmental body did not

have a reasonable basis in law to refuse disclosure of the information, or the litigation was

brought in bad faith.

We agree that the suit was brought under section 552.353(b)(3), which permits a

governmental body’s officer for public information to file 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 . . . .” Id. § 552.353(b)(3). We also agree that the News

substantially prevailed in the court below. See id. A dispute exists as to whether the News is entitled

to recover its attorney’s fees as an intervenor because the provision refers to attorney’s fees incurred

“by a plaintiff or defendant.” See id.

However, we need not decide the issue of whether an intervenor can recover

attorney’s fees under the Act because the News failed to produce evidence that the Comptroller’s

suit had no reasonable basis in law or was filed in bad faith. We emphasize that the decision to grant

or deny attorney’s fees under this provision of the Act is made at the discretion of the trial court, and

we find no abuse of discretion.

The trial court’s order denying the News attorney’s fees states that “Intervenor has

not established authority for the award of attorney’s fees.” In the absence of findings of facts and

conclusions of law, the judgment will stand on any legal theory supported by the evidence.

17

Phillips v. Estate of Poulin, No. 03-05-00099-CV, 2007 Tex. App. LEXIS 8163, at *13 n.6

(Tex. App.—Austin Oct. 12, 2007, no pet.).8

Here, the pleadings and the evidence support a finding that the Comptroller acted in

good faith. Courts presume that pleadings, motions, and other papers are filed in good faith, and the

party moving for sanctions has the burden of overcoming this presumption. GTE Commc’n Sys.

Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). While the Comptroller’s argument that date-of-

birth information is excepted from disclosure under the confidential-information exception is

incorrect, it was not brought in bad faith or based upon an unreasonable interpretation of the law.9

A party is not entitled to receive sanctions merely because opposing counsel filed a motion or

8

The News insists that the trial court’s letter ruling provides an erroneous basis for denying

its request for attorney’s fees, premised on a flawed interpretation of the Act. Pre-judgment letters

do not constitute findings of fact and conclusions of law and are not competent evidence of a trial

court’s basis for judgment. See Cherokee Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d

872, 878 (Tex. 1990) (observing that the trial court “could have disregarded the evidence at the time

judgment was actually signed” and that such a letter “is not a finding of fact” as contemplated by the

Texas Rules of Civil Procedure); Mondragon v. Austin, 954 S.W.2d 191, 193 (Tex. App.—Austin

1997, pet. denied) (pre-judgment letter “cannot constitute findings of fact and conclusions of law”);

see also Gulf States Utils. Cos. v. Low, 79 S.W.3d 561, 566 (Tex. 2002) (letter ruling did not

illuminate trial court’s basis for judgment, and appellate court, rather than remand to trial court “to

obtain the judge’s thought processes,” should determine “the judgment that can be rendered from

the pleadings, evidence, and verdict”).

9

As the Attorney General’s letter ruling noted, federal courts and courts in other states have

already held that dates of birth are private and that their disclosure is a clear invasion of personal

privacy, suggesting that it would not be unreasonable to conclude that date-of-birth information is

protected from public disclosure. See Tex. Att’y Gen. OR2006-09138 (citing Olivia v. United States,

756 F. Supp. 105 (E.D.N.Y. 1991); Scottsdale Unified Sch. Dist. v. KPNX, 955 P.2d 534

(Ariz. 1998); Zink v. Commonwealth, 902 S.W.2d 825 (Ky. Ct. App. 1994)). The fact that the Texas

Legislature has not yet chosen to create an exception for date-of-birth information does not foreclose

the possibility that Texas could join the growing number of states that protect dates of birth from

disclosure, nor should it be seen as evidence that the Comptroller’s attempt to prevent disclosure of

this information was unreasonable or made in bad faith.

18

pleading that the trial court denies. See Emmons v. Purser, 973 S.W.2d 696, 700

(Tex. App.—Austin 1998, no pet.).

Because the trial court did not act unreasonably, arbitrarily, or without reference to

any guiding rules or principles, we hold that it was not an abuse of discretion to deny the News’s

request for attorney’s fees under the Act.

UDJA

The UDJA does not require an award of attorney’s fees to the prevailing party.

Aaron Rents, Inc. v. Travis Cent. Appraisal Dist., 212 S.W.3d 665, 669 (Tex. App.—Austin 2006,

no pet.). In any proceeding under the UDJA, the court may award costs and reasonable and

necessary attorney’s fees as are equitable and just. Tex. Civ. Prac. & Rem. Code Ann. § 37.009

(West 1997).

The News argues that it is equitable and just to award attorney’s fees in its favor

because the News is the prevailing party and the Comptroller “has no legal basis to support its

position.” As discussed above, we disagree that the Comptroller filed a baseless action. The

Comptroller’s claim was filed based on a good-faith but incorrect belief that the confidential-

information exception of the Act permitted the Comptroller to withhold date-of-birth information.

We therefore hold that the trial court did not abuse its discretion in refusing to award the News its

attorney’s fees under the UDJA.

CONCLUSION

Because we find that state employees’ dates of birth are not excepted from disclosure

under the Texas Public Information Act and that the Comptroller failed to meet its burden in proving

19

that date-of-birth information is protected under the common law or the constitutional right of

privacy, we affirm the summary judgment in favor of the News. We further hold that the denial of

attorney’s fees to the News was not an abuse of discretion.

_____________________________________

Diane Henson, Justice

Before Chief Justice Law, Justices Waldrop and Henson

Affirmed

Filed: January 17, 2008

20