DATES OF BIRTH AND THE PUBLIC INFORMATION ACT

On December 3, 2010, the Supreme Court of Texas issued its opinion in Texas Comptroller of Public Accounts v. Attorney General of Texas and the Dallas Morning News more than a year after it heard oral argument.  The Court held that the comptroller properly withheld birth dates of state employees after an open records request for those and other information was made by the Dallas Morning News.

The case began several years ago when the newspaper sought a copy of the comptroller’s payroll database for state employees.  The comptroller responded with the full name, age, race, sex, salary, agency, job description, work address, date of initial employment, pay rate, and work hours for each employee.  However, the comptroller withheld dates of birth under the Texas Public Information Act’s exception from disclosure for “information considered to be confidential by law, either constitutional, statutory, or by judicial decision.”

The comptroller sought an attorney general opinion on whether those dates must be disclosed.  The attorney general concluded, in a 2006 open records letter ruling, that there was no proof “that harmful financial consequences will result from the release of the date of birth information in response to this request.”  The ruling also suggested that “based on a presentation of new facts and additional arguments,” it was possible that dates of birth could be excepted from disclosure in the future.

The Court rejected the attorney general’s conclusion, holding that a person:

‘[C]an take personal information that’s not sensitive, like birth date, and combine it with other publicly available data to come up with something very sensitive and confidential.’. . . Additionally, the Legislature has provided that state employees’ social security numbers, home addresses, and personal family information are excepted from disclosure. As the Attorney General has noted, ‘it is universally agreed that SSNs are at the heart of identity theft and fraud, and in today’s Internet world where information—including public government information—can be instantly and anonymously obtained by anyone with access to the worldwide web, the danger is even greater.’  These protections would be meaningless, however, if birth dates were disclosed, because those dates, when combined with name and place of birth, can reveal social security numbers. . . . We hold that the state employees’ privacy interest substantially outweighs the negligible public interest in disclosure here. Consistent with the federal courts and those in other states, we conclude that disclosing employee birth dates constitutes a clearly unwarranted invasion of personal privacy, making them exempt from disclosure.

The Court’s decision also addressed various complex procedural issues.  However, it was unclear as to whether the holding applies to any request for a date of birth, or only to a request for a date of birth contained in a personnel file or in conjunction with other information.  Accordingly, on December 31, 2010, the Open Records Division of the attorney general’s office sent the following e-mail to various interested parties, and asked that the League convey it to the membership:

The purpose of this e-mail is to make you aware of recent developments related to the disclosure of dates of birth under the Public Information Act, chapter 552 of the Texas Government Code.  On December 3, 2010, the Texas Supreme Court ruled section 552.102(a) of the Public Information Act excepts from disclosure the dates of birth of state employees in the payroll database of the Texas Comptroller of Public Accounts.  Tex. Comptroller of Pub. Accounts v. Attorney Gen. of Tex. & The Dallas Morning News, Ltd., No. 08-0172, 2010 WL 4910163 (Tex. Dec. 3, 2010).  On December 20, 2010, the Dallas Morning News filed a motion for rehearing in this case.  The Attorney General has joined the motion for rehearing, and in the alternative, asked the court to clarify whether its opinion applies only to dates of birth in employee personnel files or to dates of birth in all government documents.

You are receiving this e-mail because the agency (or member agencies) you represent maintains records or databases that contain dates of birth.  Below we have provided links to the Court’s opinion and dissent, the Dallas Morning News’s motion for rehearing, and the Attorney General’s motion to reconsider.  Please feel free to share this e-mail with your member agencies and consumers.

Sincerely,
Open Records Division
Office of the Attorney General

http://www.supreme.courts.state.tx.us/historical/120310.asp (Court’s opinion and dissent)
http://www.supreme.courts.state.tx.us/ebriefs/08/08017212.pdf  (Dallas Morning News motion)
http://www.supreme.courts.state.tx.us/ebriefs/08/08017213.pdf  (Attorney General motion)

The Court may or may not decide to rehear or clarify its decision.  In the meantime, city officials who wish to withhold employee dates of birth that are requested under the Act should consult with their local legal counsel and follow the standard procedure for seeking an open records letter ruling from the attorney general’s office.

TML member cities may use the material herein for any purpose.
No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the
Texas Municipal League.

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