Texas Comptroller of Pub. Accounts v. Attorney Gen. of Texas

• Decision Date: 14 January 2011
• Docket Number: No. 08–0172.,08–0172.
• Citation: 354 S.W.3d 336,39 Media L. Rep. 1289,54 Tex. Sup. Ct. J. 245
• Parties: TEXAS COMPTROLLER OF PUBLIC ACCOUNTS, Petitioner, v. ATTORNEY GENERAL OF TEXAS and the Dallas Morning News, Ltd., Respondents.
• Court: Texas Supreme Court

354 S.W.3d 336

39 Media L. Rep. 1289

54 Tex. Sup. Ct. J. 245

TEXAS COMPTROLLER OF PUBLIC ACCOUNTS, Petitioner,

v.ATTORNEY GENERAL OF TEXAS and the Dallas Morning News, Ltd., Respondents.

No. 08–0172.

Supreme Court of Texas.

Argued Sept. 10, 2009.Decided Dec. 3, 2010.Rehearing Denied Jan. 14, 2011.

Greg W. Abbott, Attorney General of Texas, Kent C. Sullivan, David S. Morales, Office of the Attorney General of Texas, Deputy First Assistant Attorney General, David C. Mattax, Chief Financial Litigation, John M. Hohengarten, Office of the Attorney General, Maureen Powers, Office of the Attorney General of Texas, Austin, TX, for Texas Comptroller of Public Accounts.

Brenda Loudermilk, Office of the Attorney General of Texas, Clarence Andrew Weber, Kelly Hart & Hallman LLP, Barbara Bryant Deane, Assistant Attorney General, Austin, TX, Gregory W. Abbott, Attorney General of Texas, Kent C. Sullivan, for Respondent.

Paul C. Watler, Jackson Walker, L.L.P., Dionne Carney Rainey, Hunton & Williams LLP, Andrew D. Graham, Jackson Walker, L.L.P., Dallas, TX, for The Dallas Morning News, Ltd.S. Anthony Safi, Mounce Green Myers Safi Paxson & Galatzan, El Paso, TX, for Amicus Curiae Texas Association of School Boards Legal Assistance Fund.Joseph R. Larsen, Sedgwick, Detert, Moran & Arnold, LLP, Houston, TX, for Amicus Curiae Freedom of Information of Tx. and Reporters Comm. for Freedom of the Press.Chief Justice JEFFERSON delivered the opinion of the Court, joined by Justice MEDINA, Justice GREEN, Justice GUZMAN, and Justice LEHRMANN.

Invoking the Texas Public Information Act (PIA), the Dallas Morning News sought a copy of the Comptroller's payroll database for state employees. See Tex. Gov't Code ch. 552. 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. But the Comptroller withheld dates of birth as protected under Government Code section 552.101, which excepts from disclosure “information considered to be confidential by law, either constitutional, statutory, or by judicial decision.” ¹ Id. § 552.101. She then sought the Attorney General's opinion on whether those dates must be disclosed. Id. § 552.301. In a comprehensive response, the Attorney General's letter ruling referenced not only section 552.101, but also section 552.102's personnel file exemption, which protects the privacy rights of government employees.

In addition to [section 552.101], the Act also provides specific protection for the privacy rights of government employees. See Gov't Code § 552.102(a). Section 552.102 of the Government Code excepts from disclosure “information in a personnel file, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Id. ... The limitation of a “clearly unwarranted invasion of personal privacy” requires a balance between the protection of an individual's right of privacy and the preservation of the public's right to government information. See Hubert v. Harte–Hanks Tex. Newspapers, Inc., 652 S.W.2d 546, 551 n. 8 (Tex.App.-Austin 1983, writ ref'd n.r.e.) (establishing test for privacy under exception; citing Dept. of the Air Force v. Rose, 425 U.S. 352, 378 n. 16, 96 S.Ct. 1592).Tex. Att'y Gen. OR2006–01938, at 2.²

In the same opinion, the Attorney General discussed the growing problem of identity theft and described how birth dates, particularly when utilized with other data, facilitate that crime. He noted that “a majority of the fifty states protect date of birth information in government employee personnel files.” Id. at 3. Ultimately, however, the Attorney General concluded 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.” Id. at 4. He left open the possibility that “based on a presentation of new facts and additional arguments, ... it is possible that Texas could join the growing number of states that protect from disclosure broad-based requests for date of birth information.” Id.

The trial court and the court of appeals sided with the Attorney General. 244 S.W.3d 629. The Comptroller has petitioned this Court, and we must now decide if the PIA requires redaction of birth dates. In the course of answering that question, we must also decide whether, to protect 144,000 state employees whose privacy interests would otherwise be compromised,³ we may consider an argument that the Comptroller presented expressly in the trial court and the court of appeals, but only tangentially here. For reasons expressed by the Attorney General in an earlier phase of this litigation, we conclude that the Comptroller properly withheld birth dates. We hold that, under the unique circumstances presented here, the questions the Comptroller has presented fairly include an argument that the privacy interest of the state's employees must be protected under the personnel-file exception. We reverse in part and affirm in part the court of appeals' judgment.

I. Procedural history

After the Attorney General issued his letter, the Comptroller, represented by the Attorney General, sued the Attorney General and sought a declaration that birth dates were excepted from disclosure. The Comptroller asserted that the Attorney General failed to apply the appropriate standards for employee privacy rights under both sections 552.101 and 552.102. The News intervened and moved for summary judgment, as did the Comptroller. The trial court granted the News' motion (although it denied the News' request for attorney's fees) and denied the Comptroller's. The court of appeals affirmed. 244 S.W.3d 629.

In the trial court and the court of appeals, the Comptroller argued that section 552.102's personnel file exemption applied. Citing Hubert v. Harte–Hanks Tex. Newspapers, Inc., 652 S.W.2d 546 (Tex.App.-Austin 1983, writ ref'd n.r.e.), however, the Comptroller contended that the test was the same under either section 552.101 or 552.102. The Attorney General agreed. The court of appeals, although noting the Comptroller's arguments under both sections 552.101 and 552.102, appears to have considered only section 552.101. 244 S.W.3d 629, 633, 635. We granted the petitions for review. 52 Tex.Sup.Ct.J. 377 (Feb. 27, 2009).⁴

II. The third party privacy interests persuade us to consider the section 552.102 exception that the Comptroller abridged from her argument in this Court.

Although his opinion letter cited a balancing test for determining whether birth date information falls within section 552.102's personnel file exception, neither the Attorney General nor the Comptroller (represented by the Attorney General) now contends that a balancing test is appropriate. Instead, before and since that letter, and based solely on the court of appeals' decision in Hubert, the Attorney General says that the test for information excepted from disclosure under section 552.102 is identical to that under section 552.101. See, e.g., Tex. Att'y Gen. OR2010–01791, at 3 (“In Hubert, the court ruled that the test to be applied to information claimed to be protected under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Foundation, for information claimed to be protected under the doctrine of common-law privacy as incorporated by section 552.101. Accordingly, we will consider your privacy claims under sections 552.101 and 552.102(a) together.”) (citations omitted); Tex. Att'y Gen. OR2005–11671, at 4 (same); Tex. Att'y Gen. OR2005–00721, at 3 (same); Attorney General of Texas, Public Information 2010 Handbook 81 (noting that “[t]he court in Hubert v. Harte–Hanks Texas Newspapers, Inc. ruled that the test to be applied under section 552.102 is the same as the test formulated by the Texas Supreme Court in Industrial Foundation for applying the doctrine of common law privacy as incorporated by section 552.101” and “[c]onsequently, in claiming that information is excepted from public disclosure under section 552.102, a governmental body should not rely upon decisions interpreting this provision that predate the Hubert decision”).

In this Court, the Comptroller no longer presses the section 552.102 argument, although her petition for review cites state and federal cases holding that disclosure of dates of birth would be a “clear invasion of personal privacy”—similar to the section 552.102 standard (“clearly unwarranted invasion of personal privacy”). The petition also notes that “[a] majority of the fifty states now exempt[s] date of birth from disclosure when an open records request is made for the personnel files of government employees”; that “[s]everal states protect the information under an ‘unwarranted invasion of personal privacy’ exemption”; and that “[o]ther states protect date of birth as part of an exception for employee personnel records.” The Comptroller cites an analogous case under the Freedom of Information Act's (FOIA) Exemption 6 (the federal personnel policy exemption), as well as a Delaware attorney general opinion determining that public release of the dates of birth of all state employees would constitute an invasion of personal privacy under that state's personnel file exception. See Del. Op. Att'y. Gen. No. 94–I019 (1994). We find it difficult to ignore these citations, even in light of the Comptroller's statement at argument that she was no longer pursuing a section 552.102 exemption.

Given the unique circumstances of this case and the third party interests at stake, we conclude that the Comptroller's petition “fairly include[s]” an argument that section 552.102 applies. Tex.R.App. P. 53.2(f); see also Pub. Utils. Comm'n v. Cofer, 754 S.W.2d 121, 124 (Tex.1988) (observing that, “in our adversary system, a court has not only the power but the duty to insure that judicial proceedings remain truly adversary in nature”). This comports with the steps taken by ...