Texas Comptroller Public Acct v. Atty. Gen.

• Decision Date: 17 January 2008
• Docket Number: No. 03-07-00102-CV.,03-07-00102-CV.
• Citation: 244 S.W.3d 629
• Parties: Appellant, TEXAS COMPTROLLER OF PUBLIC ACCOUNTS // Cross-Appellant, The Dallas Morning News v. Appellee, ATTORNEY GENERAL OF TEXAS // Cross-Appellee, Texas Comptroller of Public Accounts.
• Court: Texas Court of Appeals

244 S.W.3d 629

Appellant, TEXAS COMPTROLLER OF PUBLIC ACCOUNTS // Cross-Appellant, The Dallas Morning News v. Appellee, ATTORNEY GENERAL OF TEXAS // Cross-Appellee, Texas Comptroller of Public Accounts.

No. 03-07-00102-CV.

Court of Appeals of Texas, Austin.

January 17, 2008.

Maureen Powers, Asst. Atty. Gen., Austin, Paul C. Watler, Jackson Walker LLP, Dallas, TX, for Appellant.

Brenda Loudermilk, Chief, Open Records Litigation, Austin, TX, for Appellee.

Before Chief Justice LAW, Justices WALDROP and HENSON.

OPINION

DIANE HENSON, Justice.

This appeal concerns whether state employees' dates of birth must be disclosed pursuant to a request for information under the Texas Public Information Act. See Tex. Gov't Code Ann. §§ 552.001-.353 (West 2004 & Supp.2007) (the "Act"). An editor from The Dallas Morning News requested a copy of the state employee payroll database from the. Texas Comptroller of Public Accounts (the "Comptroller"). The Comptroller believed that certain information contained in the database, including date-of-birth information, was confidential and sought an opinion from the Attorney General as to whether its disclosure was required. The Attorney General concluded that a state employee's date of birth is public information that is subject to disclosure under the Act. The Comptroller contested the Attorney General's decision and filed suit against the Attorney General in district court. The Dallas Morning News, Ltd. (the "News") intervened. The district court agreed with the Attorney General, finding that date-of-birth information is public information and is therefore subject to disclosure under the Act, but denied the News's request for attorney's fees. Both the Comptroller and the News appealed. We affirm the judgment Of the district court.

BACKGROUND

On November 18, 2005, an editor from The Dallas Morning News submitted a request to the Comptroller for an electronic copy of the Texas state employee payroll database. Believing some of the information contained in the database to be confidential and thus protected from disclosure under sections 552.101, 552.102, and 552.108 of the Act, the Comptroller submitted a timely request for an attorney general decision determining whether those portions were excepted from disclosure.¹ See Tex. Gov't Code Ann. § 552.301 (West 2004). In an open records letter ruling, the Attorney General concluded that employee date-of-birth information is public information that must be disclosed to the requestor. See Tex. Att'y Gen. OR2006-09138.²

In response, the Comptroller filed suit under section 552.324 of the Act and the Uniform Declaratory Judgments Act ("UDJA") seeking declaratory relief from compliance with the Attorney General's letter ruling. See Tex. Gov't Code Ann. § 552.324 (West 2004); Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001-.011 (West 1997 & Supp.2007). The Comptroller alleged in its petition that (1) the Attorney General had failed to apply the appropriate standards for state employees' privacy rights under sections 552.101 and 552.102 of the Act, in accordance with Texas common law and the constitution and (2) the Attorney General erred in failing to properly apply the so-called "exceptional circumstances" test, which recognizes that special circumstances may exist to warrant protecting some public information from disclosure. See Tex. Att'y Gen. ORD-123 (1976).³

The News filed a plea in intervention and moved for partial summary judgment on the grounds that date-of-birth information is not protected by the Act, the common-law right of privacy, or the constitutional right of privacy as a matter of law and that "the vague threat of identity theft does hot constitute `exceptional circumstances'" sufficient to prevent disclosure. The Comptroller responded with a cross-motion for summary judgment, contending that date-of-birth information is protected by both common-law and constitutional rights to privacy or, alternatively, that the issue is fact-intensive and not appropriate for summary judgment.

The trial court granted the News's motion for partial summary judgment and denied the Comptroller's cross-motion for summary judgment. The News filed a second motion for summary judgment seeking attorney's fees under section 552.353(b)(3) of the Act and section 37.009 of the UDJA, which the trial court denied. Both the Comptroller and the News appealed.

In a single issue on appeal, the Comptroller argues that the trial court erred in granting the News's partial summary judgment because the release of a public employee's birth date, in conjunction with his name, is a violation of his right of privacy. In two issues on cross-appeal, the News contends that the trial court erred in failing to grant its motion for summary judgment on the issue of attorney's fees under the Act and under the UDJA.

STANDARDS OF REVIEW

Summary judgment is proper where the movant establishes that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion. Tex.R. Civ. P. 166a(c). We review the summary judgment de novo, take as true all evidence favorable to the nonmovant, and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).

On cross-motions for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000). When, as here, both parties move for summary judgment on the same issue and the trial court grants one motion and denies the other, the reviewing court considers the summary-judgment evidence presented by both sides, determines all questions presented, and if the reviewing court finds that the trial court erred, renders the judgment that the trial court should have rendered. Valence, 164 S.W.3d at 661; Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997).

Issues of statutory construction are questions of law and are reviewed de novo. Liberty Mut. Ins. Co. v. Texas Dep't of Ins., 187 S.W.3d 808, 819 (Tex. App.-Austin 2006, pet. denied). Specifically, whether information is subject to the Act and whether an exception to disclosure, applies to the information are questions of law. See City of Garland, 22 S.W.3d at 357; A & T Consultants v. Sharp, 904 S.W.2d 668, 674 (Tex.1995).

The News sought attorney's fees under section 552.353(b)(3) of the Act and section 37.009 of the UDJA. Because the Act dictates that the trial court's decision to award attorney's fees in an action under section 552.353(b)(3) is discretionary, see Tex. Gov't Code Ann. § 552.323 (West 2004), we review that decision for an abuse of discretion. See Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex.1998) (and cases cited therein, explaining that where statutes provide court "may" award attorney's fees, decision to grant or deny attorney's fees is discretionary and reviewed on appeal for abuse of discretion). Likewise, a trial court's judgment in granting or denying attorney's fees in a declaratory-judgment action under the UDJA is reviewed on appeal for an abuse of discretion. Neeley v. West Orange-Cove Consol. Indep. Sch. Dist. 228 S.W.3d 864, 867 (Tex.App.-Austin 2007, pet. denied); Florey v. Estate of McConnell, 212 S.W.3d 439, 447 (Tex. App.-Austin 2006, pet denied). A trial court abuses its discretion when it acts without reference to any guiding rules or principles, not when it simply exercises that discretion in a different manner than reviewing appellate courts might. Low v. Henry, 221 S.W.3d 609, 619 (Tex.2007).

DISCUSSION

Under the Act, "public information" is information that is "collected, assembled, or maintained . . . in connection with the transaction of official business" by a governmental body. Tex. Gov't Code Ann. § 552.002(a) (West 2004). The Act does not limit the availability of public information except as expressly provided. See id. § 552.006; Arlington Indep. Sch. Dist. v. Texas Attorney Gen., 37 S.W.3d 152, 157 (Tex.App.-Austin 2001, no pet.). The Act is to be liberally construed in favor of granting requests for information. Tex. Gov't Code Ann. § 552.001(b) (West 2004). A governmental body seeking to withhold requested information must submit a timely request for a determination from the Attorney General, asserting which exceptions to disclosure in subchapter C of the Act apply to the requested information. Id. § 552.301. Exceptions to the Act are narrowly construed. Arlington I.S.D., 37 S.W.3d at 157.

It is undisputed that state employees' dates of birth are public information because they are collected and maintained by the Comptroller's office in connection with its official business. The only issue is whether date-of-birth information falls within an exception under subchapter C.

Where, as here, a governmental body disagrees with the Attorney General's determination that information is not excepted from disclosure, the only suit the governmental body may file seeking to withhold the information is a suit against the Attorney General challenging that determination. See Tex. Gov't Code Ann. § 552.324 (West 2004). The requestor is entitled to intervene in the suit. Id. § 552.325.

The Comptroller complied with these procedures, asserting that employee date-of-birth information is excepted from disclosure, under the confidential-information exception in subchapter C, section 552.101. Section 552.101 provides that information is excepted from disclosure "if it is information considered to be confidential by law, either constitutional, statutory, or by judicial decision." See id. § 552.101. The Comptroller maintains that date-of-birth information is considered to be confidential (1) under the common law and, therefore, "by judicial decision" and (2) under the Texas constitutional right to privacy.

We hold that date-of-birth...