Texas Municipalities Await a Hard and Fast Rule Against Releasing Dates of Birth under PIA
The very first section of the Texas Public Information Act (“PIA”) states 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.” Our concern at the moment is with the part that says “unless otherwise expressly provided by law.”
The PIA itself specifically provides for 63 categories of information excepted from required disclosure, most of which are fairly narrow in scope, such as driver’s licenses, birth certificates, social security numbers, credit card numbers, etc. However, there is one particularly broad exception which excepts from disclosure “information considered to be confidential by law, either constitutional, statutory, or by judicial decision.” Practitioners often call this exception the “catch-all exception” because it essentially encompasses all law outside of the PIA regarding confidentiality.
One relatively broad category of information encompassed by the catch-all exception is information that is considered confidential under common-law privacy. According to the seminal Texas case on privacy, Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), information is deemed confidential under common-law privacy 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.”
However, the PIA generally does not allow governmental bodies to determine for themselves whether information they hold is excepted from public disclosure, and so they must request a decision from the Texas Attorney General as to whether the specific information requested by a member of the public may be withheld. Therefore, a governmental body must ask for a decision from the attorney general before it may withhold information on the basis of common-law privacy.
Historically, the Texas Attorney General would not allow governmental bodies to withhold the dates-of-birth of members of the public on the basis of common-law privacy, finding that dates-of-birth are generally not highly intimate or embarrassing. However, the City of Dallas, Texas, recently sued the attorney general, seeking to overturn the attorney general’s decision that the city could not withhold the dates-of-birth of members of the public that were contained in information requested under the PIA. As a result of that lawsuit, the Third Court of Appeals determined that the dates-of-birth of members of the public are, indeed, confidential under common-law privacy.
Nevertheless, under the strictures of the PIA, governmental bodies must continue to request a decision from the attorney general to withhold dates-of-birth until either the Texas Legislature enacts a law allowing dates-of-birth to be withheld without the necessity of a decision from the attorney general, or the attorney general renders what is known as a “previous determination” applicable to the governing body. Several governing bodies have already requested and received a previous determination from the attorney general, but each such previous determination rendered allows only that governmental body to withhold dates-of-birth without having to request a decision from the attorney general in the future. The attorney general may, however, render a previous determination applicable to all governmental bodies, as has been done in the past for such information as the personal cellular telephone numbers of peace officers, e-mail addresses of members of the public, W-2 and W-4 Forms, fingerprints, and other sundry information. Whether a universal previous determination as to dates-of-birth is on the horizon is yet to be seen; however, and in the meantime, much time and money is being spent by governmental bodies to keep dates-of-birth—maybe even yours—from being disclosed to the public at large.