The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

Texas State Employees’ Birth Dates are Private

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On Friday, the Texas Supreme Court issued a decision that state employees’ birth dates are private and therefore exempt from open records requests. 

The case arose because the Dallas Morning News had requested 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, pay rate, and work hours for each employee.  However, the Comptroller withheld birth dates, stating that they were confidential. 

The Texas Public Information Act exempts from disclosure information from a "personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Tex. Gov’t Code § 552.102(a).  The court discussed the potential for identity theft as a result of disclosure of birth dates, noting that birth dates are a valuable piece of information for identity thieves and that "almost every major consumer protection entity … advises citizens against publicizing their dates of birth or using their dates of birth as pin numbers and passwords."

Concluding that state employees have a "nontrivial privacy interest" in their birth dates, the court then examined whether the public interest outweighed those privacy interests.  The Dallas Morning News argued that the public has an interest in monitoring the government, and that birth dates could be used to determine whether school districts and hospitals have hired convicted felons or sex offenders.  However, since the Dallas Morning News failed to produce evidence of specific government wrongdoing, the court rejected this argument.  Additionally, the Comptroller had demonstrated that each employee was distinguishable using only the information produced.  Thus the court held that the state employees’ privacy interests "substantially" outweighed the public interest, and concluded that "disclosing employee birth dates constitute a clearly unwarranted invaction of personal privacy."

The Freedom of Information Foundation of Texas expressed disappointment with the decision, stating the birth dates are vital information for journalists, researchers, and others using data bases to identify an individual.   They also noted that the state of Texas sells birth date information on a regular basis, and that the ruling could cost the state tens of millions of dollars each year.

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Author: ABA Antitrust

Learn more about the ABA Section of Antitrust Law: http://ambar.org/antitrust

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