

IN THE SUPREME COURT OF TEXAS
 
════════════
No. 
08-0172
════════════
 
Texas Comptroller of Public 
Accounts, Petitioner,
 
v.
 
Attorney General of Texas and 
the Dallas Morning News, Ltd., Respondents
 
════════════════════════════════════════════════════
On Petition for Review from 
the
Court of Appeals for the Third 
District of Texas
════════════════════════════════════════════════════
 
 
Argued September 10, 2009
 
 
            
Justice Wainwright, joined 
by Justice Johnson, dissenting in 
part and concurring in part.
            

            
The dates of birth of state government employees that the Dallas Morning 
News requested from the Comptroller in this case are defined as public 
information—information legitimately collected and maintained by the State of 
Texas. There is no dispute of that fact. Unlike social security numbers, the 
Legislature has not expressly excepted birth dates from 
disclosure.1 And no one disagrees with the proposition 
that public information should be handled in ways that provide protections 
against identity theft. But we should not forget that the more public 
information is protected from disclosure to the people, the less information the 
public gets from the government that serves it. It is a fundamental policy of 
the State of Texas that its citizens are entitled “at all times to complete 
information about the affairs of government and the official acts of public 
officials and employees.” City of Dallas v. Abbott, 304 S.W.3d 380, 388 
(Tex. 2010) (Wainwright, J., dissenting) (citing Tex. Gov’t Code § 552.001).
            
The public information at issue has proven quite useful not only to 
inform citizens of the actions of the government and to arm citizens to hold the 
public sector accountable but also to highlight problems in the public sector 
that should be addressed. For example, the information sought in this case, 
which had been released to the News in prior years, was used to determine that a 
number of Texas Youth Commission employees had some criminal background and that 
some employees of a local school district had criminal records.2 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. These are legitimate uses 
of public employees’ birth dates, which the Court precludes by its 
opinion.
            
Obviously, whether to disclose or keep secret public information involves 
a balancing of policy objectives, including the public’s right to transparency 
in governmental affairs and privacy concerns of public employees. In 
promulgating the Texas Public Information Act (PIA), the Legislature balanced 
disclosure and protection of different types of public information about public 
employees. The Legislature decided that dates of birth are public information, 
as the Court and the Comptroller concede. And the State of Texas for years has 
sold birth date information of Texas public employees to businesses, and the 
parties point to no problems with identity theft arising from those prior 
disclosures.3 To address illicit use of personal 
information, the Legislature promulgated the Identity Theft Enforcement and 
Protection Act with criminal penalties for those parties who engage in identity 
theft.4 Before today, no Texas court had held 
that dates of birth of public employees are confidential or otherwise precluded 
their disclosure.
            
This case is fundamentally about which institution decides that 
balance—the Legislature or the judiciary. Our task in this case is not to decide 
if we think these birth dates should be confidential. We are charged with 
deciding whether the Legislature excepted dates of birth of public employees 
from disclosure under section 552.101 of the PIA. I would hold that it did not. 
The Court reaches the contrary result, not under section 552.101, but under 
section 552.102, an issue the Comptroller did not raise in this Court and 
expressly disclaims as a basis for its position that the information should be 
protected. I respectfully dissent.
I. Factual and Procedural 
History
            
On November 18, 2005, an editor with the Dallas Morning News (News) 
submitted a PIA request to the Comptroller for an electronic copy of the Texas 
state employee payroll database. The News requested the full name, birth date, 
job description, agency, salary, race, sex, work 
address, date of initial employment, pay rate, and work hours of every state 
employee in the database. Contending that birth dates, certain salary 
deductions, and an employee’s designation as a peace officer are protected from 
disclosure under sections 552.101 and 552.108 of the Act, the Comptroller 
submitted a timely request for an attorney general decision determining whether 
those portions of the public information should be withheld. See Tex. Gov’t Code § 552.301 
(mandating that a governmental body that wishes to withhold requested 
information from public disclosure that it considers to be excepted from 
disclosure under Subchapter C of the PIA must timely ask for a decision from the 
attorney general). In an open records letter ruling, the Attorney General 
concluded that public employees’ dates of birth are public information that must 
be disclosed to the requestor. See Tex. Att’y 
Gen. OR2006–01938.
            
Arguing that the release of the birth dates could lead to identity theft, 
the Comptroller filed suit seeking declaratory relief from compliance with the 
Attorney General’s letter ruling as provided by Subchapter H of the PIA. Tex. Gov’t Code §§ 552.321–.327. The News 
intervened in the lawsuit and moved for partial summary judgment on the ground 
that birth dates are not protected from disclosure by the PIA. The Comptroller 
responded with a cross-motion for summary judgment, contending that the 
information is protected as a matter of law 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 Comptroller appealed arguing to withhold 
the information under 552.101 and 552.102.
            
The Comptroller argued 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 the employee’s right of privacy. 
The court of appeals held that the disclosure of state employees’ birth date 
information would not violate any privacy interests, and thus was not protected 
under section 552.101 of the PIA. 244 S.W.3d 629, 635 (Tex. App.—Austin 2008, 
pet. granted). In this Court, however, the Comptroller narrowed her argument and 
only argues that the birth dates are “confidential” under section 552.101 of the 
PIA and thus excepted from the PIA’s mandatory 
disclosure requirement. 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.” Tex. Gov’t Code § 552.101. The Comptroller 
argues that birth date information is excepted as 
confidential “by judicial decision” because the Texas common law privacy tort of 
intrusion upon seclusion, described by this Court in Billings v. 
Atkinson, creates a protected privacy interest in this information, thus 
making it confidential. 489 S.W.2d 858, 859–60 (Tex. 
1973).
II. Preservation and Waiver: The Court Decides This Case 
on an Issue 
the Comptroller Expressly Disclaimed.
 
            
The Comptroller was asked at oral argument specifically if her position 
included arguments under PIA section 552.102 and employing a balancing test to 
determine whether to protect the birth dates from disclosure. Her counsel 
responded:
Answer: I would say that we are 
going solely under 552.101 . . . . We 
are not advocating a balancing test . . . we don’t believe a balancing test is 
applicable under this particular state regulatory system.
 
* * * 
 
Question: There’s an argument that 
552.102 is a stronger argument, but you’re not making that argument. I want to 
be clear about that.
 
Answer: We are not making that 
argument.
 
* * * 
 
Answer: [A] 
balancing test . . . is simply not found 
in the PIA.
The Comptroller’s position on this 
issue could not be clearer. She unequivocally limited her argument for 
nondisclosure of birth dates of public employees “solely” to section 552.101 of 
the PIA and shunned the application of a balancing test. Nevertheless, the Court 
renders its decision not on section 552.101 of the PIA, but instead bases its 
decision on section 552.102 and creates a balancing test to determine that the 
information is excepted from 
disclosure. The Comptroller presents neither argument and disclaims both. She 
did not cite, much less discuss, section 552.102 in her petition for review or 
brief on the merits, and, at oral argument, specifically disclaimed any reliance 
on either section 552.102 or a balancing test.
            
On occasion, a case may present a court with a fine line between 
adjudication and advocacy. However, we should remain on the side of adjudicating 
only the issues presented, absent rare and extraordinary situations not 
presented here. See In re B.L.D., 113 S.W.3d 340, 351–55 (Tex. 2003) 
(recognizing that courts may review fundamental error not assigned). The 
Legislature and the Attorney General have both decided as a matter of policy not 
to protect dates of birth from disclosure, yet the Court shuns its substantial 
precedents on waiver to reach the contrary policy. Moreover, the information the 
Court protects has already in large part been disclosed. In the summary judgment 
evidence, the News submitted an affidavit stating that it has received the state 
employees database, including the dates of birth of the 
employees, from the Comptroller’s office in response to previous requests for 
the information.
            
Our rules of procedure require that a party present the issues to be 
decided by this Court in the party’s petition and brief on the merits. 
See Tex. R. App. P. 33.1, 53.2(f), 53.4, 55.2(f). 
“[I]ssues not presented in the petition for review and 
brief on the merits are waived.” Guitar Holding Co., L.P. v. Hudspeth Cnty. Underground Water Conservation Dist. No. 1., 263 
S.W.3d 910, 918 (Tex. 2008) (citing Tex. 
R. App. P. 53.2(f)); Ramos v. Richardson, 228 S.W.3d 671, 673 
(Tex. 2007) (per curiam) (refusing to address an 
argument raised in petitioners’ merits brief because petitioners failed to 
advance it in their petition for review); City of Austin v. Travis Cnty. Landfill Co., L.L.C., 73 S.W.3d 234, 241 
n.2 (Tex. 2002) (precluding consideration of an argument raised below because the respondent disclaimed the argument 
before the Supreme Court). “[W]e should not stretch for a reason to reverse that 
was not raised.” Del Lago 
Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). This is 
true even for constitutional issues. In re B.L.D., 113 
S.W.3d at 350–51. We make rare exceptions to our waiver rules to review 
“fundamental error,” but only in situations related to preservation of 
jurisdictional error and in “quasi-criminal” juvenile delinquency cases. 
Id. The Comptroller does not allege fundamental error.
            
Waiver rules exist for good reasons. “[A]dhering to our preservation rules isn’t a mere technical 
nicety; the interests at stake are too important to relax rules that serve a 
critical purpose.” In re L.M.I., 119 S.W.3d 707, 708 
(Tex. 2003). The rules, among other things, prevent unfair surprise of 
the other party and constrain us to perform our constitutional task to decide 
only existing cases or controversies. See B.L.D., 113 S.W.3d at 350; 
L.M.I., 119 S.W.3d at 710–11; see also Tex. Const. art. II, § 1; Brooks v. 
Northglen Ass’n, 141 
S.W.3d 158, 164 (Tex. 2004) (recognizing that the separation of powers clause in 
article II, section 1 of the Texas Constitution bars this Court from issuing 
advisory opinions). I dare say that the News will be surprised by the Court’s 
deciding this case on a ground it was not given an opportunity to 
address.
            
This is not a typical waiver case in which a party argues that it did 
raise the issue or that it is fairly included in its petition and briefs. Not 
only did the Comptroller choose not to raise or analyze the exception from 
disclosure under section 552.102 in her petition or brief, her counsel 
affirmatively disclaimed the argument at least four times at oral argument. 
See supra at 5–6 (“[W]e are going solely under 552.101 
. . . . We are not making that argument . . . . 
We are not advocating a balancing test. . . . [A] balancing test . . . is simply not found in the 
PIA.”).
            
The Court holds that the Comptroller properly withheld birth dates under 
section 552.102. The Court’s reasoning for reaching the section 552.102 issue 
is: “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).” ___ S.W.3d 
___ (further citation omitted). That’s an odd conclusion when the beneficiary of 
the ruling expressly disclaims that very argument. In essence, the Court holds 
that the Comptroller’s section 552.101 argument fairly 
includes the section 552.102 argument, and it will consider arguments the 
Comptroller did not make.
            
The Court 
indicates it acts on behalf of public employees who do not have a voice in this 
dispute. But, the PIA provides a mechanism for the public employees affected to 
submit their arguments to the Attorney General when considering a governmental 
body’s decision not to disclose public information. The governmental entity 
shall make a good faith attempt to notify such persons in writing of the request 
for the attorney general decision and may then submit a brief with reasons why 
the information should be withheld. Tex. 
Gov’t Code § 
552.305. Although the record indicates that the mechanism 
was not utilized, the Court’s holding makes the provision irrelevant in this 
case.
            
I disagree that the Court should disregard our rules on waiver to decide 
an issue specifically and repeatedly disclaimed by the Comptroller, without any 
allegation of fundamental error. Because the Court decides this case under 
section 552.102, I note some concerns with that analysis. I also analyze this 
dispute under the statutory framework raised and argued by the parties—whether 
section 552.101 excepts state employees’ dates of birth 
from disclosure.
III. Risk of 
Identity Theft
            
Applying Section 552.102 and adopting a new balancing test articulated by 
the U.S. Supreme Court in Department of the Air Force v. Rose, 425 U.S. 
352, 372 (1976), the Court holds that the state employees’ privacy interests 
substantially outweigh the public interest in disclosure. ___ 
S.W.3d ___. 
A. The Sky Is Not Falling: The Court’s Characterization 
of the 
Privacy Interest at Stake Is 
Overstated.
 
            
Section 552.102 excepts from disclosure 
information in a personnel file “the disclosure of which would constitute a 
clearly unwarranted invasion of personal privacy.” Tex. Gov’t Code § 552.102. The Rose 
test, adopted today by this Court, balances an individual’s privacy claims 
against the public interest in disclosure. Rose, 
425 U.S. at 372. Because Congress only excepted from 
disclosure information that constitutes a “clearly unwarranted” invasion of 
privacy, federal courts have noted that the balance of disclosure interests 
should be tilted in favor of disclosure and creates a “heavy burden” for an 
agency invoking the exception. E.g., Morley v. 
Cent. Intelligence Agency, 508 F.3d 1108, 1128 (D.C. Cir. 
2007) (noting that the CIA had the burden to show withholding is necessary under 
the federal Freedom of Information Act (FOIA) Exemption 6 for records pertaining 
to a deceased CIA officer, and no privacy interest was articulated); Wash. 
Post Co. v. U.S. Dep’t of Health & Hum. Servs., 690 F.2d 252, 275 (D.C. Cir. 
1982). The Court jumps on the bandwagon of a number of other states, or federal 
trial courts, that have held that birth date 
information may constitute a clearly unwarranted invasion of personal privacy. 
While I am sensitive to the privacy rights of public employees and understand 
the concern of the Court, I believe the Court’s reasoning is misguided for three 
fundamental reasons.
            
First, the Legislature has not protected dates of birth of public 
employees from disclosure. Birth dates by themselves are not private or 
damaging.5 The Court and the parties have recognized 
as much. And the Restatement of Torts recognizes as much. Restatement (Second) of 
Torts § 652D cmt. b (“Thus there is no liability for giving publicity to facts 
about the plaintiff’s life that are matters of public record, such as the date 
of his birth . . . .”). And even the U.S. Supreme Court has 
recognized as much, reasoning that information that is “not intimate” such as 
“place of birth, date of birth, date of marriage, employment history, and 
comparable data” may be restricted only in the disclosure of a “personnel” or 
“medical” file that itself would be a clearly unwarranted invasion of personal 
privacy. U.S. Dep’t of State v. Wash. Post Co., 456 
U.S. 595, 600 (1982). “‘[C]ongress also made 
clear that nonconfidential matter was not to be 
insulated from disclosure merely because it was stored by an agency in its 
“personnel” files.’” Id. at 601 (quoting Rose, 
425 U.S. at 372). 
            
The Court points to no evidence that disclosure of birth dates would be 
offensive to a reasonable person, would cause harm, or would lead to personal 
harm. Instead, the Court holds, much more tenuously, that disclosure is harmful 
because birth date information, “taken together” with other information, may “be 
used to facilitate identity theft,” or may be used to locate a Social Security 
number, which may be used to facilitate identity theft. ___ S.W.3d ___ (quoting 
Hearst Corp. v. State, 882 N.Y.S.2d 862, 875 (N.Y. Sup. Ct. 2009)). In other words, the harm is not in the disclosure 
of the birth date, but in the possibility that some evildoer may use a 
birth date to gain other information (such as a social security number) 
which he or she then may use to commit identity theft. Never before has 
the Court held that information is not subject to disclosure under the PIA 
because the information may lead to other information that may be used to cause 
harm. By that logic, much information of a personal nature would be immune from 
disclosure—names of public employees, dates of employment, home addresses. This 
sort of information, taken together with other information, might lead to the 
employee’s social security number and possibly to identity theft. While the 
state has outlawed identity theft, and individuals may sue when others 
misappropriate their private data, the Court should not allow subversion of the 
open-government policies of the PIA under the risk that some of the public 
information may later be misused.
            
As written, FOIA Exemption 6 (substantially identical to section 552.102) 
likely only protects the information itself, not its derivative uses or problems 
down the line. 
 
Perhaps FOIA would be a more sensible law if the 
Exemption applied whenever disclosure would “cause,” “produce,” or “lead to ” a 
clearly unwarranted invasion of personal privacy—though the practical problems 
in implementing such a provision would be considerable. That is not, however, 
the statute Congress enacted. Since the question under 5 U.S.C. § 552(b)(6) is whether “disclosure” would “constitute a clearly 
unwarranted invasion of personal privacy”; and since we have repeatedly held 
that FOIA’s exemptions “‘must be narrowly construed,’” it is unavoidable that 
the focus, in assessing a claim under Exemption 6, must be solely upon what the 
requested information reveals, not upon what it might lead to. That result 
is in accord with the general policy of FOIA, which we referred to in United 
States Dept. of Justice v. Reporters Committee for Freedom of Press, 489 
U.S. 749, 771 (1989) that the particular purposes for which a request is made 
are irrelevant.
 
U.S. Dep’t of State v. 
Ray, 502 U.S. 164, 
180–81(1991) (Scalia, J., concurring) (emphasis added) (citations and quotations 
omitted). Birth date information is not highly intimate or embarrassing; birth 
dates are not generally included in “the type of information that a person would 
ordinarily not wish to make known about himself or herself.” Assoc. Press. 
v. U.S. Dep’t of Def., 554 F.3d 274, 292 (2d Cir. 
2009). If it had been raised, the text of section 552.102 does not require 
consideration of derivative harm.
            
Interestingly, the Texas Identity Theft Enforcement and Protection Act 
requires businesses to take reasonable steps to protect 
“sensitive personal information” collected or maintained by the business in the 
regular course. Tex. Bus. & Com. Code § 
521.052. Sensitive personal information is generally an 
individual’s name combined with any one or more of the following: social 
security number, driver’s license number or government-issued identification 
number, or account, credit card or debit card number. Id. 
§ 521.002(a)(2). The Legislature has not extended 
this obligation to dates of birth. Id.6 Notifications to others required by the 
Identity Theft Act for breaches of computer security apply only when sensitive 
personal information is reasonably believed to have been acquired by an 
unauthorized person. Id. § 521.053. Again, the 
Legislature did not include dates of birth in the same risk category with 
sensitive personal information.
            
Second, the support relied on by the Court is far from conclusive. The 
Court repeats general statements about birth date information but cites to and 
provides no real data supporting the proposition that birth date information 
truly leads to identity theft, or that the disclosure of someone’s birth date, 
in and of itself, has caused any person to be the victim of identity theft. The 
Court points to a study from Carnegie-Mellon University in which researchers 
were able, with 60% accuracy, to determine the first six digits of 
a person’s Social Security number when given the person’s date and location of 
birth, for persons born after 1989. ___ S.W.3d ___ (citing Alessandro 
Acquisti & Ralph Gross, Predicting Social 
Security Numbers From Public Data, 106 Proc. Nat’l Acad. Sci. 10975 (2009)). 
Other scholarly and media reports and court cases cited by the Court repeat the 
findings of the Acquisti and Gross study, or make 
general statements that compilation of data can be more helpful to identity 
thieves than data spread out through multiple sources, or that simply assert 
that birth dates may lead to more private data. Neither the Court nor the 
Comptroller cite any study positively demonstrating that release of birth date 
information with a person’s name, without a social security number, makes it 
significantly more likely that the person will be the victim of identity 
theft. And neither cites any study evidencing an identity theft that began 
through birth date information being disclosed in a public database. 
            
Credible studies indicate that dates of birth are not the sin qua non 
of identity theft. The most common form of identity theft arises from credit 
card theft or check fraud, and the least common form arises from stolen social 
security numbers or other personal information. Herb Weisbaum, Identity Theft Problem: The Facts Behind the 
Fear, MSNBC (Oct. 21, 2010, 7:42 AM) 
http://www.msnbc.msn.com/id/39763386/ns/business-consumer_news/ (last visited 
Dec. 1, 2010) (recognizing a recent report that the “most common form of 
identity theft is . . . ‘old-fashioned credit card theft or check 
fraud,’” with nearly all respondents to the survey recognizing that their 
identity theft was due to stolen or misused credit or debit cards, and that a 
hijacking of an identity using a “Social Security number and other basic 
information” is the “least common form of identity fraud”). A recent study 
published by the United States Federal Trade Commission reports that a thief’s 
use of a social security number with a new name and false date of birth 
currently accounts for 80–85 percent of all identity fraud. Lanny Britnell, Identity Theft America, The Changing Face of 
Identity Theft, at 1, available at 
http://www.ftc.gov/os/comments/creditreportfreezes/534030-00033.pdf; see also Synovate, Federal Trade Commission—2006 
Identity Theft Survey Report 30 (Nov. 2007), available 
at http://www.ftc.gov/os/2007/11/SynovateFinalReportIDTheft2006.pdf 
(recognizing that 56 percent of victims did not know how their information was 
stolen, and of the 43 percent of victims who did, many knew the thief 
personally, had their identities stolen through a purchase or other transaction, 
from a wallet, from a company that had the information, from hacking, 
“phishing,” the mail, or some other way). The Attorney General’s office 
indicated its strong desire to eliminate identity theft, but candidly 
acknowledged at argument that there is “no firm evidence” that disclosure of 
birth dates facilitates identity theft and confirmed that the PIA is not 
intended to prohibit illegal use of data.
            
The information here is public information, and the connection between 
the information being disclosed and the actual harm sought to be prevented is 
too tenuous to support the judicial restrictions on disclosure of the public’s 
information proffered by the Court when that same public information has been 
shown to have positive benefits.
            
Finally, the privacy interest at stake here is lower than the Court makes 
it out to be because much if not most of the information at issue has been 
distributed by the state for years—in some instances for a fee. Texas sells 
personal information under the Motor Vehicle Records Disclosure Act, including 
names, addresses, dates of birth and driver’s license 
numbers, to businesses, insurance companies, private investigatory agencies and other third parties, for a number 
of specified purposes. See Tex. 
Transp. Code §§ 730.007, .011 (permitting agencies to disclose the 
personal information and to charge “reasonable fees for such disclosure”); Ryan 
McNeill, ID Theft vs. Public Record at A1 (reporting that “private 
companies spent nearly $50 million during the last fiscal year” buying Texas 
drivers’ data). To the extent that Texas government employees have driver’s 
licenses, it is likely that their dates of birth have either already been 
released by a Texas governmental agency or sold to private entities, or both. 
Even though the Transportation Code section has been in place for nearly 13 
years, there is no evidence submitted indicating that information disclosed 
through that mechanism has been a hotbed of identity theft. The State has sold 
similar information on Texans with driver’s licenses for years, suggesting that 
arguments that the same information about a subset of Texans will greatly 
increase the possibility of identity theft ring hollow. This Act regulates the 
use of motor vehicle information and allows disclosure of birth dates of all 
Texas drivers, whether public or private employees, to 
many private parties capable of disguising their true identities. And an 
authorized recipient of this personal information is authorized to resell or 
redisclose that information for permitted purposes. 
Tex. Transp. Code 
§ 730.013(b).7 It is ironic that the Court cuts off free 
access by the public under the PIA to the same public information that is being 
sold under the Transportation Code.
B. The News 
Has Established a “Sufficient Reason” for the Disclosure.
            
When personal privacy interests are at stake, the second part of the 
Rose balancing test is whether the requestor has established a 
“sufficient reason for the disclosure.” See Nat’l Archives & Records 
Admin. v. Favish, 541 U.S. 157, 172 (2004). The 
requesting party must establish “that the public interest sought to be advanced 
is a significant one, an interest more specific than having the information for 
its own sake. Second, the citizen must show the information is likely to advance 
the interest. Otherwise, the invasion of privacy is unwarranted.” 
Id.
            
The Court holds that the News loses under the balancing test because it 
“has produced no evidence supporting government wrongdoing [and therefore] the 
public interest in disclosure is negligible.” ___ S.W.3d ___ (citation omitted). 
I disagree; the public interest in the information is demonstrated. The News 
argues that it wishes to use the date of birth information to determine whether 
particular governmental employees who work in or near children are convicted 
felons or sex offenders. The News asserts a two-fold need for birth dates: 
first, to determine whether governmental entities are employing sex offenders or 
felons in jobs that may put children or the public at large at risk, and second, to confirm the identity of a particular 
governmental employee who may have a criminal record. The News advises that some 
2,000 employees of the State of Texas have the same first and last name. It is 
reasonable and desirable that the media check the identities of these employees 
before publishing unflattering facts about them. The News further advises that, 
through its research, it was able to disclose in an article that over 250 
employees of the Texas Youth Commission were convicted felons. See 
McNeill, ID Theft vs. Public Record, at A1. These are legitimate and 
productive uses of dates of birth.
            
No one doubts that citizens of this state have a right to know the names 
of those who work for them in government. Neither party, nor the Court, disputes 
that the News has the right to such names, and the names are easily available, 
in electronic form, on various governmental websites and other databases. See, e.g., Capitol Complex Telephone System (CCTS) Directory, 
http://www.dir.state.tx.us/ccts/directory/index.html (last visited Dec. 1, 2010) 
(listing the names, titles, and telephone numbers of employees working in or 
near the Capitol). On the other hand, no one argues that state employees 
give up all of their privacy rights simply by working as an unelected public 
servant. But the disclosure of the birth dates in this case may actually help 
preserve government workers’ privacy, by ensuring that any organization—media, 
political, watchdog, financial, governmental, or otherwise—does not falsely 
accuse those governmental employees of being persons they are not. This is 
different from the data that the government collects about non-governmental 
employees. Cf. U.S. Dep’t of Justice v. Reporters Comm. for Free Press, 
489 U.S. 749, 773 (1989) (concerning a FOIA request for criminal records of an 
individual investigated by the FBI). The information at issue may actually 
prevent mistaken identities and will help keep the government accountable for 
those they hire.
            
But fundamentally, under the summary judgment procedures, the Court errs 
by requiring evidence in the record that the News had no reason to provide in 
the first place. At the trial court in her summary judgment motion, the 
Comptroller argued that section 552.101 excepted birth 
dates from disclosure under Industrial Foundation and the Texas common 
law. Although the Comptroller mentioned that other courts had applied a 
balancing test, she did not request that one be applied to the facts here. 
Likewise, at the court of appeals, the Comptroller once again argued that 
section 552.101 excepts public employees’ birth dates 
from disclosure under common law and constitutional concepts. Rose, and 
the balancing test now adopted by the Court, was not cited as a basis for the 
Comptroller’s position before the court of appeals issued its opinion. The 
Comptroller cited section 552.102 only in her reply brief at the court of appeal 
to support the position that sections 552.101 and 552.102 “protect the same 
privacy interests.” There was no need for the News to submit any evidence for 
the trial court summary judgment proceedings showing a “significant” public 
interest that the information is “likely to advance.” ___ 
S.W.3d ___ (citing Favish, 541 U.S. at 
172). We cannot expect a party to present evidence for a standard 
unknown, unargued, and unapplied below—another reason 
we enforce our waiver rules. E.g., Pirtle v. Gregory, 629 S.W.2d 
919, 920 (Tex. 1982) (per curiam) (noting that a party 
should not “surprise his opponent on appeal by stating his complaint for the 
first time”). At a minimum, this Court should remand the case to the trial court 
for the parties to develop the record and argue the balancing test under the new 
standard. Tex. R. App. P. 
60.2(f), 60.3 (providing that this Court may remand for further proceedings in 
light of changes in the law or in the interest of justice); Boyles v. 
Kerr, 855 S.W.2d 593, 603 (Tex. 1993) (“We have broad discretion to remand 
for a new trial in the interest of justice where it appears a party may have 
proceeded under the wrong legal theory. Remand is particularly appropriate where 
the losing party may have presented his or her case in reliance on controlling 
precedent that was subsequently overruled.” (citations 
omitted)). Here, the successful party at trial relied on a standard that the 
Court has now abandoned. Certainly the News should have an opportunity to make 
its case under the new formula. 
            
For these reasons, I would not decide this case under section 552.102 and 
the Court’s balancing test. As discussed below, under the issue asserted by the 
Comptroller, birth dates are not confidential under section 552.101.
IV. Disclosure 
of Birth Date Information
            
The Comptroller argues that public employees’ dates of birth are 
“confidential” under section 552.101 of the PIA. It is useful to understand the 
PIA’s structure. 
A. The Legislature’s Comprehensive Statutory Scheme for 
Government Transparency
            
The stated policy of the PIA is to promote open government. “[I]t is the 
policy of this state that each person is entitled, unless otherwise expressly 
provided by law, at all times to complete information about the affairs of 
government and the official acts of public officials and employees.” Tex. Gov’t Code § 552.001(a). “Public 
information” includes information that is “collected, assembled, or maintained . 
. . in connection with the transaction of official business” by a governmental 
body. Id. § 552.002(a). In general, the PIA is 
to be liberally construed in favor of granting requests for information. Id. § 552.001(b). Relative to other freedom of 
information laws, such as FOIA, the Texas PIA more strongly favors transparency 
and open government. See, e.g., City of Garland v. Dallas 
Morning News, 22 S.W.3d 351, 364 (Tex. 2000) (“Unlike the FOIA, our Act 
contains a strong statement of public policy favoring public access to 
governmental information and a statutory mandate to construe the Act to 
implement that policy and to construe it in favor of granting a request for 
information.”).
            
While the PIA provides an ardent statutory edict for openness in state 
affairs, the Legislature has protected specified information from disclosure in 
Subchapter C of the PIA. Tex. Gov’t Code §§ 552.101–.151. A 
governmental agency is not required to disclose information excepted under Subchapter C of the PIA, but it may disclose 
such information if it chooses, “unless the disclosure is expressly prohibited 
by law or the information is confidential under law.” Id. § 552.007. Some examples of information that the 
PIA excepts from disclosure include information that 
would give advantage to a competitor or bidder, information in a student record 
at an educational institution funded wholly or partly by state revenue, and the 
social security number of a living person. Id. 
§§ 552.104, .114(a), .147(a).
            
In addition to these exceptions, the Legislature created a special 
category of information in the PIA— “confidential” information. Information that 
is considered “confidential” is a subset of the information excepted from 
disclosure. See id. § 552.101. But, unlike information that 
is merely excepted from disclosure, the PIA prohibits the 
disclosure of confidential information and makes its disclosure a crime 
punishable by: “(1) a fine of not more than $1,000; (2) confinement in the 
county jail for not more than six months; or (3) both the fine and confinement.” 
Id. § 552.352. The Legislature specifically 
identifies in the PIA some information that is considered confidential.8 Outside of the PIA, no fewer than 100 
Texas statutes classify information as confidential for purposes of the PIA.9 Other statutes specifically limit the 
scope of “confidential” information. For example, while section 552.147 
generally excepts social security numbers of living 
persons from disclosure, it also explicitly states that it “does not make the 
social security number of a living person confidential under another provision 
of this chapter or other law.” Tex. 
Gov’t Code § 
552.147. Other statutes, however, do make social security 
numbers contained in specified records “confidential” and subject to criminal 
penalties, such as on voter registration applications and in law enforcement 
personnel records. See Tex. Elec. Code § 13.004(c); 
Tex. Gov’t Code § 552.1175. 
            
The text of the PIA indicates that the Legislature intended the word 
“confidential” to have a specific meaning in the PIA, separating highly 
sensitive information that is prohibited from disclosure (such as the 
home address of a peace officer) from sensitive information that is merely 
excepted from disclosure (such as information in a student record). The 
PIA thus creates three distinct categories of public information—information 
required to be disclosed, information excepted from mandatory (but not 
voluntary) disclosure, and confidential information that is prohibited from 
disclosure and subject to criminal penalties.10 It is within this statutory framework 
that I consider whether birth dates of public employees are considered to be 
part of this third category of “confidential information.”
            
As a policy matter, it is admittedly undesirable to release information 
about public employees that could lead to identity theft. States typically have 
overwhelmingly addressed this issue by legislation. The Attorney General noted 
that a number of other states have excepted birth date information in personnel 
files from open records request disclosures in statutes.11 
            
The Texas Legislature has balanced the competing interests of open 
government and individual privacy in deciding which types of public information 
are excepted from disclosure in the PIA. This Court 
previously acknowledged that this is the Legislature’s role. “Although we 
recognize that there is often much potential for abuse of information in 
government records, the task of balancing the public’s right of access to 
government records against potential abuses of the right has been made by the 
Legislature; the court’s task is to enforce the public’s right of access given 
by the Act.” Indus. Found. of the S. v. Tex. Indus. 
Accident Bd., 540 S.W.2d 668, 675 (Tex. 1976). The Legislature excepted 
information for privacy reasons if it has been “considered to be confidential by 
law, either constitutional, statutory, or by judicial decision.” Tex. Gov’t Code § 552.101. We are 
constrained therefore not to apply a different, or more 
expansive meaning of “confidential” for purposes of section 552.101 because it 
might be good policy to prevent the disclosure of certain information. Our task 
is to enforce the public’s right to access given by the PIA and adhere to the 
language of section 552.101 and the statutory scheme set up by the PIA, “not to 
second-guess the policy choices” that inform these statutes. See McIntyre v. 
Ramirez, 109 S.W.3d 747, 748 (Tex. 
2003).
            
Nowhere in the PIA has the Legislature specifically excepted general birth date information, birth date 
information combined with other identifying information, or information the 
disclosure of which is feared may lead to identity theft. The Legislature has 
enacted specific statutes to protect against identity theft. See Tex. Bus. & Com. Code §§ 72.004, 
521.001–523.053. My inquiry, then, is whether birth date information is 
“confidential” pursuant to section 552.101.
B. Exception to Mandatory 
Disclosure of Public Information Under 
Section 552.101 of the 
PIA
 
            
Section 552.101 of the PIA states that public information is excepted from the broad disclosure “requirements of Section 
552.021 if it is information considered to be confidential . . . by judicial decision.” 
Relying on the opinion in Industrial Foundation, the Comptroller argues 
that the release of birth date information would violate the tort of intrusion 
upon seclusion. Therefore, she argues, such information has been considered to 
be confidential by the judicial decision in Billings v. Atkinson and is 
excepted from disclosure by 
section 552.101. 
            
This Court’s only interpretation of section 552.101 was the subject of a 
fractured opinion (a three justice plurality, two separate concurrences, and a 
four justice dissent) in Industrial Foundation of the South v. Texas 
Industrial Accident Board., 540 S.W.2d 668, 675 (Tex. 1976). Despite the 
various views of the Industrial Foundation Court, there was unanimity on 
the proposition that the PIA does not give courts the discretion to secret 
certain information from the public by creating new categories of confidential 
information not protected by the terms of the PIA. In Industrial 
Foundation, the petitioners argued that the Legislature intended section 
552.101 “to delegate to the courts a duty to determine what information should 
be excepted from disclosure as confidential by balancing in each case the 
interest in privacy against the interest in disclosure, thus creating a 
common-law privacy doctrine which would except the information involved ‘by 
judicial decision.’” Indus. Found., 540 S.W.2d 
at 681. The Court rejected that argument:
We do not believe that a court is free to balance the 
public’s interest in disclosure against the harm resulting to an individual by 
reason of such disclosure. This policy determination was made by the Legislature 
when it enacted the statute. “All information collected, assembled, or 
maintained by governmental bodies” is subject to disclosure unless specifically 
excepted. We decline to adopt an interpretation which 
would allow the court in its discretion to deny disclosure even though there is 
no specific exception provided.
 
Id. at 681–82; see also id. 
at 691–92 (Reavley, J., 
dissenting, joined by Steakley, Pope, and Denton, 
JJ.) (“I agree with everything in the opinion of the majority except what 
is written to support the holding that information on the nature of the injury. . . may be ‘deemed confidential’ . . . . It 
was not the intention of the Legislature to turn over the administration of the 
Open Records Act to the judiciary.”). In other words, courts do not have the 
discretion to classify information as confidential on an ad hoc basis; 
confidentiality of public information is to be determined by the terms of the 
Act. To sanction the creation by courts of new types of protected information 
not identified in the PIA would open the way for judicial amendment of the PIA. 
Accordingly, I would interpret section 552.101 to deem confidential information 
that was held by judicial decision to be confidential at or before the time of 
the provision. 
            
This approach would leave policy-making to the Legislature. It would also 
provide certainty in the definition of confidential information so that 
governmental entities and public officials may act accordingly. If courts 
decided which public information is considered to be confidential on an ad 
hoc basis, according to what individual jurists believe to be good policy, a 
court could decide to make birth date information confidential under the PIA in 
order to further the policy goal of preventing identity theft. An immediate 
consequence of this might be the attachment of criminal penalties for the 
disclosure, apparently even if unintended, of birth date information. See 
note 10. Government officials may be forced to redact all birth date 
information disclosed to the public or face criminal penalties, even in records 
that are decades old and currently made available to the public in, for example, 
all the state courthouses in the two hundred fifty-four counties around the 
state.12 By limiting these determinations to 
information that has already been considered confidential, such as information 
the disclosure of which would violate the public disclosure tort, legislators 
can enact policy in a careful, deliberate manner, often preventing the 
substantial practical problems that may accompany judicial overstepping. 

            
A majority of the court in Industrial Foundation looked to the 
Court’s decision in Billings v. Atkinson, which recognized the tort of 
public disclosure of private facts, in order to determine whether the 
information at issue had been considered to be “confidential.” “We recognized in 
Billings . . . that an individual has the right to be free from ‘the 
publicizing of one’s private affairs with which the public has no legitimate 
concern . . . .’” Indus. Found., 540 S.W.2d 
at 682. The Court interpreted “confidential” according to its common 
dictionary definition—“‘known only to a limited few: not publicly disseminated: 
PRIVATE, SECRET.’” Id. at 683. The majority 
reasoned that the characteristics of the dictionary definition of confidential 
are “precisely the characteristics which information protected by this branch of 
the tort invasion of privacy must have. And, we believe that it is this type of 
information which the Legislature intended to exempt from mandatory disclosure . . . .” Id. 
Billings explained that certain information is protected by the tort of 
public disclosure. The majority opinion in Industrial Foundation held 
that the Legislature intended to protect this same information from disclosure 
under the PIA by excepting it as confidential (or 
private) by the judicial decision in Billings. Thus, “if a governmental 
unit’s action in making its records available to the general public would be an 
invasion of an individual’s freedom from the publicizing of his private affairs, 
then the information in those records should be deemed confidential by judicial 
decision.” Id. 
            
Reasonable minds may differ today as to the meaning of the phrase 
“information considered to be confidential . . . by 
judicial decision.”13 But the Legislature has not amended this 
section of the PIA in the thirty-seven years since that decision, and 
Industrial Foundation is still our sole authority on the meaning of 
section 552.101. Tex. Gov’t Code 
§ 552.101; see Acts June 14, 1973, 63rd Leg., R.S., ch. 424, § 3, 1973 Tex. Gen. Laws 1112, 1113. Respecting the 
Legislature’s prerogative and the precedential value of the opinion in 
Industrial Foundation, I would not extend it to create unintended 
exceptions under the PIA.
C. The Comptroller’s Argument for Analysis under the Intrusion 
upon Seclusion Tort
            
The Comptroller asks this Court to expand Industrial Foundation by 
holding that if the disclosure of information would lead to a violation of the 
privacy tort of intrusion upon seclusion, such 
information should be considered to be confidential under section 552.101. The 
Comptroller acknowledges that no judicial decision has ever held that 
information is confidential because disclosure of such would violate the tort of 
intrusion upon seclusion, and no Texas court has ever held that the intrusion 
upon seclusion tort can be violated by a disclosure of information. Cf.
Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993); Cornhill Ins. 
PLC v. Valsamis, Inc., 106 F.3d 80, 85 (5th 
Cir. 1997) (applying Texas law); Clayton v. Wisener, 190 S.W.3d 685, 696–97 (Tex. App.—Tyler 2005, 
no writ); Wilhite v. H.E. Butt Co., 812 
S.W.2d 1, 6 (Tex. App.—Corpus Christi 1991, no writ). 
            
The elements of the torts of public disclosure of private facts (as 
applied in Industrial Foundation) and intrusion upon seclusion contain 
important differences. The public disclosure tort has two elements: “information 
[is] deemed confidential by law if (1) the information contains highly intimate 
or embarrassing facts the publication of which would be highly objectionable 
to a reasonable person, and (2) the information is not 
of legitimate concern to the public.” Indus. Found., 540 S.W.2d at 685. On the other hand, the intrusion tort’s 
elements are: “(1) an intentional intrusion, physically or otherwise, upon 
another’s solitude, seclusion, or private affairs or concerns, which (2) would 
be highly offensive to a reasonable person.” Valenzuela, 853 S.W.2d at 513. 
            
The Comptroller attempts to expand section 552.101 to include as 
confidential by judicial decision information that would be protected by the 
intrusion upon seclusion tort. For this argument to succeed, the Court would 
have to redefine the intrusion tort to include the disclosure of birth date 
information that may lead to an intrusion (i.e. by an identity thief). 
This connection is difficult to make. For instance, if a burglar enters your 
house, reads through your private files and papers, and steals your credit cards 
and identification, is the publisher of the phone book from which the burglar 
obtained your address liable for the intrusion? The answer is, of course, no. 
The tort of intrusion upon seclusion can only be committed by “[o]ne who 
intentionally intrudes, physically or otherwise, upon the solitude or seclusion 
of another or his private affairs or concerns.” Id. The tort is not 
committed by one who unintentionally facilitates the possible intrusion. 
Moreover, no Texas court has ever found a violation of the intrusion tort absent 
a physical intrusion or surveillance upon the seclusion of another, and the Comptroller does not cite any judicial 
decision that has ever made such a determination. Cf. Clayton, 190 
S.W.3d at 696–97; Wilhite, 812 S.W.2d at 6; Valsamis, 106 F.3d at 85.
Industrial 
Foundation is very 
clear that the question is whether the disclosure itself, not the requestor’s 
use of the information, would violate an individual’s right to privacy. “[I]f a 
governmental unit’s action in making its records available to the general 
public would be an invasion of an individual’s freedom from the publicizing of 
his or her private affairs, then the information in those records should be 
deemed confidential by judicial decision under . . . the 
Act.” Indus. Found, 540 S.W.2d at 683 (emphasis added). Justice 
Reavley, in dissent, also agreed that the Legislature 
is “concerned with confidentiality entirely apart from the manner of use of the 
information.” Id. at 692 (Reavley, J., dissenting). The analysis should focus 
on whether the government’s disclosure would violate the individual’s privacy. 
For PIA tenets to apply based on the use rather than nature of the information 
would require government entities to obtain the reasons why the information is 
requested. This would contradict the clear prohibition in the PIA against 
government inquiries into the purpose for the requested information. Tex. Gov’t Code § 552.222; A 
& T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 676 (Tex. 1995) (holding 
that courts may neither consider purpose of the request nor inquire into how the 
requestor intends to use the information). 
            
The Comptroller’s argument for extending Industrial Foundation to 
include an alternative analysis of section 552.101 using the intrusion upon 
seclusion tort is not supported by the provisions of the PIA. 
D. 
Application of the Industrial Foundation 
Test
            
The Industrial Foundation test holds that information “is excepted from mandatory disclosure 
. . . as information deemed confidential by law if (1) the information contains 
highly intimate or embarrassing facts the publication of which would be highly 
objectionable to a reasonable person, and (2) the information is not of 
legitimate concern to the public.” Indus. Found., 540 
S.W.2d at 685. I first analyze whether birth date information is highly 
intimate or embarrassing information, the publication of which would be highly 
objectionable to a reasonable person.
            
The Court in Industrial Foundation analyzed information contained 
in workers’ compensation files to determine whether it satisfied this element of 
the tort. The Court reasoned that some information would satisfy the “highly 
intimate” standard, including:
a claim for injuries arising from a sexual assault of a 
female clerk following an armed robbery; a claim on behalf of illegitimate 
children for benefits following their father’s death; a teacher’s claim for 
expenses of a pregnancy resulting from the failure of a contraceptive device; 
claims for psychiatric treatment of mental disorders following work related 
injuries; claims for injuries to sexual organs, and for injuries stemming from 
an attempted suicide; and claims of disability caused by physical or mental 
abuse by co-employees or supervisors.
 
Id. at 683. This is the deeply personal, highly 
intimate type of information the tort is meant to protect from publicity. 

            
The Second Restatement of Torts also gives examples of information that 
rises to the level of highly intimate or embarrassing. “Sexual relations, for 
example, are normally entirely private matters, as are family quarrels, many 
unpleasant or disgraceful or humiliating illnesses, most intimate personal 
letters, most details of a man’s life in his home, and some of his past history 
that he would rather forget.” Restatement (Second) of Torts § 652D 
cmt. b (1977). 
Contrasting this private information, the Restatement notes, “there is no 
liability for giving publicity to facts about the plaintiff’s life that are 
matters of public record, such as the date of his birth, the fact of his 
marriage, [or] his military record . . . .” Id. (emphasis added). 
The U.S. Court of Appeals for the Fifth Circuit, interpreting Texas law, came to 
the same conclusion:
However, none of these items of information — middle 
initial, age, street address, job title — can be characterized under Texas law 
as “private” and “highly intimate or embarrassing facts about a person’s private 
affairs, such that its publication would be highly objectionable to a person of 
ordinary sensibilities.” Texas invasion of privacy law in this respect has been 
guided by Prosser, Law of Torts § 117 (4th ed. 1971) and Restatement 
(Second) of Torts § 652D. Prosser, supra, states “‘[t]he plaintiff 
cannot complain when . . . publicity is given to matters such as the date of 
his birth.’” Id. § 117 at 858 . . . . The Restatement (Second) of 
Torts . . . is to the same effect . . . “[t]here is no liability for giving 
publicity to facts about the plaintiff’s life . . . such as the date of his 
birth . . . .”
Johnson v. Sawyer, 47 F.3d 716, 732–33 (5th Cir. 1995) 
(citing Indus. Found., 540 S.W.2d at 682–84) (further citations omitted) 
(emphasis added). If disclosure of birth dates is held to violate the public 
disclosure of private facts tort, the consequence to tort law would be to 
potentially allow recovery for damages whenever someone publicizes information 
as “highly intimate” as a birth date. The public disclosure tort was not meant 
to protect such information from publicity. See 
Johnson, 47 F.3d at 732; Restatement 
(Second) of Torts § 652D cmt. b (1977).
            
The Comptroller argues that the combination of birth date information and 
other identifying information, such as a name, rises to the level of “highly 
intimate” justifying exclusion from disclosure. She argues that because birth 
date information, in conjunction with this other information, can be used 
to access sensitive information, such as a social security number, birth 
date information itself is sensitive information. The argument casts too broad a 
net and misses the essence of the inquiry. How otherwise public information is 
used after disclosure does not guide the analysis of whether it is confidential 
and excepted from disclosure under section 552.101. See Indus. Found. 540 
S.W.2d at 692 (Reavley, J., dissenting) (“I read the 
Legislature to be concerned with confidentiality entirely apart from the manner 
of use of the information.”). If that analysis were determinative, much of the 
defined public information would be withheld because of a possibility or 
likelihood of it being used itself or in conjunction with other public 
information for inappropriate or illegal purposes. For example, that a person’s 
business address, race, and gender could be used by a stalker to identify 
and commit an assault at the person’s workplace, does not convert the work 
address into confidential information. In addition, the public disclosure tort 
focuses on the character of the information itself. Is it “highly intimate” such 
that its mere publication would be objectionable to a reasonable person? See 
Indus. Found. 540 S.W.2d at 683. How the 
information is used once it is made public, while of obvious concern to 
policy-makers who balance the risks in writing statutes, does not drive the 
analysis in interpreting section 552.101. Accordingly, public employees’ birth 
dates do not constitute highly intimate or embarrassing facts the publication of 
which would be highly objectionable to a reasonable person.
            
This information is also of legitimate public concern. The News contends 
that birth date information ensures accuracy in identifying subjects of 
newspaper articles, and the information has also been used to determine that 
criminal offenders have been employed by some public school systems. The 
Comptroller has offered no response to this contention. In any event, birth date 
information does not satisfy the first requirement of the public disclosure 
analysis, that the information contain highly intimate 
or embarrassing facts the publication of which would be highly objectionable to 
a reasonable person. I would conclude that the disclosure of birth date 
information does not violate the public disclosure tort, and birth date 
information is not confidential under section 552.101 of the PIA.
E. The 
Balancing Test
            
The Court 
applies a balancing test following the U.S. Supreme Court’s decision in Rose 
v. Department of the Air Force, 425 U.S. 352 (1976), to hold that birth date 
information is confidential under our PIA. In that case, the Supreme Court 
interpreted Exemption 6 of FOIA, which excepts from 
disclosure “personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal privacy.” 
Id. at 370 (quoting 5 U.S.C. § 552(b)(6)). 
The Court held that the language “clearly unwarranted invasion of personal 
privacy” in the statute was a Congressional mandate for courts to balance “the 
individual’s right of privacy against the preservation of the basic purpose of 
the Freedom of Information Act ‘to open agency action to the light of public 
scrutiny.’” Id. at 372.  
            
As noted above, the pivotal language in FOIA Exemption 6 is not contained 
in section 552.101 of the Texas PIA. The Court should not create a balancing 
test for the section 552.101 analysis when the language from which the test 
arises (“clearly unwarranted invasion of personal privacy”) is not contained in 
the relevant provision. See Indus. Found., 540 S.W.2d at 681–82 (“Absent 
[a provision with the “clearly unwarranted” language], we do not believe that a 
court is free to balance the public’s interest in disclosure against the harm 
resulting [from] disclosure.”). Therefore, the Court’s balancing test is 
inappropriate here, and we should leave for another day whether a balancing test 
is appropriate for any determination under section 552.102, or, as the Austin 
Court of Appeals held in Hubert v. Harte-Hanks Texas Newspapers, Inc. 
twenty-seven years ago, that the test is the same under both sections. 652 S.W.2d 546, 550 (Tex. App.—Austin 1983, writ ref’d n.r.e.).
IV. Fee 
Shifting
            
The News also challenges the trial court’s refusal to award attorney’s 
fees under the PIA and the Uniform Declaratory Judgment Act as an abuse of 
discretion, based upon language in two sections of the PIA that were in effect 
at the time of this suit but have subsequently been amended. Tex Gov’t Code §§ 552.323(b), 
.324.14 The Court did not address the issue at 
length because the Comptroller prevailed. ___ S.W.3d 
___. In my view, the News should prevail, but I would hold that the trial 
court was correct in exercising its discretion in deciding whether to assess 
attorney’s fees against the Comptroller. Because the Comptroller had a 
legitimate concern over privacy issues relating to the disclosure of birth date 
information under the PIA, she had a reasonable basis in law to refuse 
disclosure of the information and the litigation was brought in good faith. 
Accordingly, I concur in the judgment of the Court on the attorney’s fees 
issue.
V. 
Conclusion
            
The Legislature’s comprehensive statutory scheme that guarantees public 
access to government information through the PIA, with selected exceptions, does 
not make birth dates confidential under section 552.101. Because the Court 
reaches a different result based on an issue the Comptroller waived, I 
respectfully dissent. I concur in the judgment on the attorney’s fees 
issue.
 
                                                                                                                                                                                    
___________________________
                                                                                                                                                                                    
Dale Wainwright 
                                                                                                
Justice 
 
Opinion Delivered: December 3, 2010 











1 Bills 
submitted in the 2009 legislative session that would prevent disclosure of birth 
dates of public employees failed to pass. Tex. S.B. 1912, 81st 
Leg., R.S. (2009); Tex. H.B. 4207, 81st Leg., R.S. (2009). So there is 
still no express preclusion on the requested disclosure of birth dates. There 
are protections of birth dates in specific circumstances that are not before the 
Court in this case. See, e.g., Tex Gov’t Code § 552.1176; Tex Elec. Code § 13.004(d)(4).

2 Ryan 
McNeill, ID Theft vs. Public Record: State May Hide Workers’ Birthdates, but 
It Sells Same Info on All Drivers, [hereinafter “McNeill, ID Theft vs. 
Public Record”] Dallas Morning News, 
May 7, 2009, at A1, available at 
http://www.dallasnews.com/sharedcontent/dws/dn/yahoolatestnews/stories/050709dnprodateofbirth.3fcf743.html 
(reporting that “private companies spent nearly $50 million during the last 
fiscal year” buying Texas drivers’ data, including birth dates).

3 See 
McNeill, ID Theft vs. Public Record, at A1.

4 The 
Identity Theft Enforcement and Protection Act prohibits 
use of personal identifying information without the other person’s consent to 
obtain anything of value in the other person’s name. Tex. Bus. & Com. Code 
§ 521.051. Personal 
identifying information includes name, social security number, date of birth or government-issued identification number. 
Id. § 521.002(a)(1). The penalties for violation 
may be civil or, in certain types of credit card theft, criminal. Id. §§ 521.151, 522.002.

5 Unless, 
of course, one is sensitive about one’s age. But if that were the case, then the 
Comptroller’s release of employees’ ages would be just 
as offensive as birth dates.

6
“Personal identifying information,” different from “sensitive personal 
information,” includes date of birth. Tex. Gov’t Code § 521.002(a)(1).

7 Prior 
to 2001, the Transportation Code permitted agencies to distribute birth date 
information “for bulk distribution for surveys, marketing, or solicitations” 
provided that persons had the opportunity to opt-out and prohibit the uses. 
Tex. Transp. Code 
§ 730.007, repealed by Acts 2001, 77th 
Leg., R.S., ch. 1032.

8
Examples include the home address, home telephone number, or social 
security number of peace officers, county jailers, and current or former 
employees of the Texas Department of Criminal Justice, among others; any 
identifying information of a crime victim or claimant, including address and 
social security number; credit card, debit card, charge card, or access device 
number that is collected, assembled, or maintained by or for a governmental 
body; and the social security number of applicants for a marriage license. Tex. Gov’t Code § 552.1175, .132, .136, 
.141.

9 An 
electronic search of Texas statutes returned 101 results in which certain 
information was “confidential” and “not subject to disclosure” under the PIA. 
Examples include certain records of teacher certification examinations (Tex. Educ. Code § 21.048(c-1)), student 
loan borrower records (Tex. Educ. Code 
§ 57.11(d)), child welfare service reports, (Tex. Fam. Code § 264.613(a)), DNA records stored in the Department 
of Public Safety DNA database (Tex. Gov’t Code § 
411.153(a)), the responses to exit interviews provided by departing government 
workers (Tex. Gov’t Code § 
651.007(g)), certain nursing home records (Tex. Health & Safety Code § 
242.134(a)), certain carrier contracts in the workers’ compensation system, 
(Tex. Ins. Code § 1305.154(a)), social security numbers provided by 
applicants for professional licenses (Tex. Occ. Code § 
59.001), pending proposals for comprehensive development agreements in 
transportation projects (Tex. Transp. 
Code § 370.307(a)), and certain information relating to mineral, oil, and 
gas leases (Tex. Nat. 
Res. Code §§ 52.190(d), 
53.081(d)).

10 The 
PIA may not criminalize all distribution of information designated 
“confidential” in some manner in the statute. The penal provision of the PIA 
makes distribution of information “considered confidential under the terms of 
this chapter” a misdemeanor punishable by fine, confinement in county jail, or 
both. Tex. Gov’t Code 
§ 552.352(a). 
Information “considered to be confidential by law” is “excepted” from the disclosure requirements of section 
552.021. Id. § 552.101. We have not 
addressed whether the “confidential” information referred to in section 552.021 
is treated the same as the “confidential” information in section 552.352(a). 


11 Tex. 
Att’y Gen. OR2006-01938 (citing State Practices for 
Classification of Date of Birth in Public Records (on file with Open Records 
Division of the Office of the Attorney General)): 
                
 According to the survey, 
states with an “unwarranted invasion of personal privacy” exemption in their 
open records law protect date of birth information. See Haw. Rev. Stat. § 92F-13(1); 5 Ill. Comp. 
Stat. 140/7(1)(b); Kan. Stat. Ann. § 45-221(30); Ky. Rev. Stat. § 
61.878(1)(a); Mass. Gen. Laws Ann. ch. 66, § 10; 
Mich. Comp. Laws Ann. § 15.243; N.H. Rev. Stat. Ann. § 91-A:5; N.J. Stat. 
Ann. § 47:1A-10; N.Y. Pub. Off. 
§ 89(2)(b)(iv); Utah Code Ann. § 63-2-302(2)(d). One 
state grants date of birth protection under a similar standard, “unreasonable 
invasion of personal privacy.” See S.C. Code Ann. § 30-4-40(a)(2). Several states protect date of birth information under 
an exception for employee “personnel” records. See Ariz. Admin. Code 
R2-5-105; Del. Code Ann. 
tit. 29 § 10002; Kan. Stat. Ann. § 45-221(4); Iowa Code § 22.7; Md. Code Ann., State 
Gov’t § 10-616(h)(2)(I); Miss. Code Ann. § 25-1-100; N.D. Cent. Code § 
44-04-18.1; Or. Rev. 
Stat. § 192.502(3); R.I. Gen. Laws 
§ 38-2-2; Va. Code Ann. § 2.2-3705.1(1); 
Wyo. Stat. Ann. § 16-4-203. The state of 
Georgia protects employee date of birth information under a statute that 
specifically makes confidential date of birth information “if technically 
feasible at a reasonable cost.” See Ga. Code Ann. § 50-18-72(a)11.3(A). Several states protect date of birth information by 
unofficial policy. Finally, the state of Washington protects date of birth 
information under a state plan to curtail identity theft. 

12 An 
example of the scope of unintended consequences and potential harm of such a 
seemingly simple act of making birth date information confidential was shown 
recently when an attorney general opinion opined that social security numbers 
are confidential. Tex. Att’y Gen. 
Op. No. GA-0519 (2007). District and county 
court clerks around the state uniformly petitioned for relief because their 
provision of access to the social security numbers in the public records of the 
numerous courts they serve potentially subjected them to criminal penalties. The 
Attorney General’s office abated its opinion and the Legislature swiftly and 
unanimously passed a statute expressly providing that Social Security numbers 
are not confidential. See Tex. 
Gov’t Code 552.147(a).

13
See, e.g., Indus. Found., 540 S.W.2d at 688 (Daniel, 
J., concurring) (“It is my opinion that . . . the Legislature did not intend [the 
Open Records Act] to be as broad as it was written.”); id. (Johnson, J., 
concurring) (“Since a majority of this court has concluded that Rule 9.040 
of the Industrial Accident Board is invalid . . . this 
writer joins Justice Doughty’s opinion insofar as it requires that certain 
information in the Board’s records be withheld to protect the common law right 
of privacy of compensation claimants.”); id. at 
691–92 (Reavley, J., dissenting) (“I doubt that we are 
entitled to read this intent into the Legislature’s use of ‘confidential.’ 
. . . It was not the intention of the Legislature to turn over the 
administration of the Open Records Act to the judiciary. I would construe our 
question of legislative intent in favor of disclosure and then await legislative 
change if the result is objectionable. This area of confidentiality can best be 
mapped by statute.”).

14 Each 
of these sections has since been amended, clarifying the attorney’s fees issue. 
The Legislature moved the cause of action from Texas Government Code section 
552.353(b)(3) to 552.324. The amended section 552.324 
now reads:
(a) The only suit a governmental body may file seeking to 
withhold information from a requestor is a suit 
that:
(1) is filed in a Travis County district court against the 
attorney general in accordance with Section 552.325; and
(2) seeks declaratory relief from 
compliance with a decision by the attorney general issued under Subchapter G. 

(b) The 
governmental body must bring the suit not later than the 30th calendar day after 
the date the governmental body receives the decision of the attorney general 
determining that the requested information must be disclosed to the requestor . If the governmental body does not bring suit 
within that period, the governmental body shall comply with the decision of the 
attorney general. If a governmental body wishes to preserve an affirmative 
defense for its officer for public information as provided in Section 
552.353(b)(3), suit must be filed within the deadline provided in Section 
552.353(b)(3) .
 
Tex. Gov’t Code § 552.324. Section 
552.353(b)(3) now reads:
(b) It is an 
affirmative defense to prosecution under Subsection (a) that the officer for 
public information reasonably believed that public access to the requested 
information was not required and that:
(3) not later 
than the 10th calendar day after the date of receipt of a decision by the 
attorney general that the information is public, the officer or the governmental 
body for whom the defendant is the officer for public information filed a 
petition for a declaratory judgment against the attorney general in a Travis 
County district court seeking relief from compliance with the decision of the 
attorney general, as provided by Section 552.324, and the cause is pending. 
Id. § 552.353(b)(3). And section 552.323(b) now explicitly allows the trial 
court to shift fees in an action under section 552.324:
(b) In an 
action brought under Section 552.324, the court may assess costs of litigation 
and reasonable attorney’s fees incurred by a plaintiff or defendant who 
substantially prevails. . . .
Id. 
§ 552.323(b). This new statutory scheme should prevent the confusion 
found here from occurring in future cases.
 