Birth dates of state employees are private, Texas high court rules

Steve Korris Dec. 9, 2010, 2:59am

Texas Comptroller Susan Combs

AUSTIN – Birth dates of state employees must remain private, the Supreme Court of Texas decided on Dec. 3.

Five of nine justices agreed that State Comptroller Susan Combs properly withheld employee birth dates from the Dallas Morning News.

Two justices dissented, and two did not participate.

For the majority, Chief Justice Wallace Jefferson cited the danger of identity theft.

"When the privacy rights of a substantial class of innocent third parties are affected by one of our decisions, we have a duty to pay them heed," he wrote.

"Employee birth dates shed little light on government actions," he wrote.

Jefferson wrote that consumer protection agencies advise citizens against publicizing birth dates or using them as passwords.

"We do not doubt that the News would put the information to beneficial use," he wrote. "But if the requested information is disclosed to the News, it must be disclosed to any applicant, including those who would employ it for illegitimate purposes."

Justices David Medina, Paul Green, Eva Guzman and Debra Lehrmann joined him.

Justices Dale Wainwright and Phil Johnson dissented, finding the News used birth dates in the past to check criminal backgrounds.

"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," Wainwright wrote.

Justices Nathan Hecht and Don Willett did not participate.

When the Dallas Morning News asked for data on about 144,000 state employees, Combs delivered every name with age, race, sex, agency, job, salary, work address, employment date, pay rate and work hours. But she withheld birth dates, which the state had previously provided to the News.

Attorney General Greg Abbott advised her to release them, finding no proof that harmful financial consequences would result.

Combs sued Abbott, and the News intervened with a motion for summary judgment.

Travis County District Judge Lora Livingston granted the motion, and Third District appeals judges in Austin affirmed her.

Combs appealed and won.

Jefferson wrote, "The News points out that the public has an interest in monitoring the government, and birth dates could be used to determine whether governmental entities like school districts have hired convicted felons or sex offenders.

"But when a protected privacy interest is at stake, the requestor must identify a sufficient reason for the disclosure; mere allegations of the possibility of wrongdoing are not enough.

"Because the News has produced no evidence supporting government wrongdoing, the public interest in disclosure here is negligible."

He wrote that if the News obtains such evidence it can request relevant birth dates.

Dissenter Wainwright wrote, "Birth dates by themselves are not private or damaging."

According to Wainwright, the Legislature and Abbott decided birth dates were public information and that the information had already in large part been disclosed.

For example, the state sells to businesses birth dates from driver licenses, Wainwright wrote.

He wrote that Combs didn't cite any study demonstrating that release of a birth date with a name made it more likely a person would be a victim of identity theft or cite any evidence that an identity theft began through disclosure of a birth date in a public database.

"The News advises that some 2,000 employees of the State of Texas have the same first and last name," he wrote.

"The information at issue may actually prevent mistaken identities and will help keep the government accountable for those they hire."

Abbott represented Combs in spite of their disagreement, along with Kent Sullivan, David Morales, David Mattax, John Hohengarten and Maureen Powers.

Paul Watler, Dionne Rainey and Andrew Graham represented the Dallas Morning News.

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