Texas SC to decide if date of birth is public information

The SE Texas Record Jul. 14, 2009, 11:39am

Diane Henson

AUSTIN – Texas Supreme Court justices must decide whether editors at the Dallas Morning News should know the birth dates of state employees.

The justices have set oral arguments for Sept. 10 on the newspaper's effort to pry the dates from comptroller of public accounts Susan Combs.

Travis County District Judge Stephen Yelenosky and the Third District appeals court in Austin have ruled in the newspaper's favor.

Though Combs argues that disclosure creates a risk of identity theft, Attorney General Greg Abbott supports the newspaper's position.

In 2005, Morning News editors asked previous comptroller Carole Keeton Rylander for a copy of the state employee payroll database.

Rylander delivered most of the data but sought advice on releasing the birth dates from Abbott.

He declared them subject to disclosure under the Texas Public Information Act.

Rylander disagreed. She sued Abbott.

The Morning News intervened on Abbott's side and they secured a favorable ruling from Yelenosky.

The Morning News moved for attorney's fees, but Yelenosky denied the motion.

Combs appealed the disclosure order, and the Morning News appealed the denial of attorney's fees.

At the Third District, three judges affirmed both decisions last year.

"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," Justice Diane Henson wrote.

"An employee's date of birth, if known to the general public, is neither highly intimate nor embarrassing," she wrote.

She wrote that affidavits of employees about potential misuse of the information did not count as evidence that release would invade their privacy or result in identity theft.

The Third District denied the newspaper's appeal for legal fees, holding that Rylander and Combs did not act in bad faith or interpret the law unreasonably.

Federal courts and courts in other states have declared birth dates private, Henson wrote.

"The fact that the Texas Legislature has not yet chosen to create and 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," she wrote.

The Supreme Court Web site identifies Abbott as counsel to both himself and Combs. It shows Kent Sullivan as counsel to both Abbott and Combs.

David Morales, David Mattax, John Hohengarten and Maureen Powers also represent Combs.

Brenda Loudermilk, Clarence Weber and Barbara Deane represent Abbott.

Paul Walter, Dionne Rainey and Andrew Graham represent the Morning News.

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