Monday, December 06, 2010

Activist Texas Supreme Court ruling neuters government accountability

The Texas Supreme Court has issued a terrible decision  making secret state employees' birthdays, a move that essentially eliminates the ability of reporters and other outside investigators to distinguish them from others with the same name in public documents. Unless you've worked as an investigative reporter or opposition researcher, looking into misconduct by government employees with common names, it would be easy to underestimate how important it is to keep such information public.

The stated reason for the decision was to prevent identity theft, but that's a red herring. In practice, a birthday alone is not sufficient to steal someone's identity, anymore than millions of people listing their birthdates on Facebook substantially risks identity theft. Reports AP:
Justice Dale Wainwright's dissenting opinion called the theory of identity theft overblown and warned the court about chipping away at the public's right to get information legitimately collected by the government.
Wainwright's dissent noted studies that show most identity theft comes from cases of stolen checks and credit cards, or cases in which a criminal used a fake birth date, not a real one.
As far as I'm concerned, the decision violated open records law by improperly considering how such information might be used, even though there is no specific exception for birthdays under the Public Information Act. Again from AP:
The court also said that although it trusted the newspaper to do the right thing with the birth-date information, if the state gave it to the paper, then it would have to give it to anyone else who asked for it, even those with bad intentions.
"We do not doubt that the News would put the information to beneficial use," the court majority said, adding that someone else might ask for the same information for "illegitimate purposes."
But the Public Information Act specifically forbids the state from inquiring how requestors will use government data. Instead, if information is not specifically excepted - and employee birthdays are not and never have been - the information should be public. On this question I'm fond of quoting the prescription for liberal construction in the opening lines to the Public Information Act:
Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it 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. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
In this case, rather than liberally construe the law in favor of openness, the Texas Supreme Court engaged in outcome-based judicial activism, deciding what policy outcome jurists preferred then opining to that effect instead of interpreting the law on its face.

This will have far reaching ramifications, with much more serious consequences for government accountability than any risk of identity theft. I hope the Legislature rolls back this activist ruling next spring. It's impossible to hold government accountable if you can't even tell who's working for it.

UPDATE: See related coverage:


Don Cruse said...

You say that this "essentially eliminates the ability of reporters and other outside investigators to distinguish them from others with the same name in public documents."

Honest question: How often would a date of birth in a database really help for that? Unless the public document in question lists each person's name and birthday, how would you know which of two people with that name were referenced? How would knowing their birthdates help you as an investigator disambiguate the name "John Smith" listed on a memo?

Because you've done opposition research and other investigative work, I hope you can shed some light on this. Do you have (public) examples of when a birthdate would have helped you personally tell which person was being named?

Gritsforbreakfast said...

Absolutely, it helps all the time. There's typically no other practical way to distinguish same-name individuals besides middle initial, DOB, and maybe home address. If you don't have any of those data, distinguishing becomes impossible for people with common names.

A good example: The Dallas News used employee DOBs to identify TYC employees with criminal histories. There would be no other way to do that without the birthdates.

Another example: in 2002 when I peformed opposition research on behalf of Patrick Rose against incumbent Rick Green (a very common name). I was able to link him to real estate irregularities and federal criminal litigation entirely because of the DOB - otherwise I could never have conclusively shown it was the same person. He'd been involved in some shady stuff but the public would never have known if you couldn't show the Rick Green in court documents, real estate records, etc., was the same person as the guy in the Lege.

Usually in such investigations one generates LOTS of documents that are cross-referenced using fact bites from many sources. Even if a public doc doesn't list DOB, seeking out the DOB of the person listed (say, in or voter registration rolls) then cross-referencing it to the DOB of the employee is often the only way to pinpoint whether it's the same person.

Say the issue is you think John Smith received kickbacks and you believe you've found payments to Smith through another source. That other source doesn't have a DOB in the document itself, but you're able to get that info from voter registration rolls. Even with that in hand, though, if you can't get the state employee's DOB, you couldn't tell if the Smith you've identified as receiving payments is the same person as the government employee.

If that's not clear, say so and I'll take another stab at it. Admittedly this is an obscure issue. It seems trivial except there's no other functional way to make those links. It's more or less a lynchpin investigative reporting technique.

doran said...

Damnable activist judges!!!

I am anxiously awaiting the condemnatory comments in the MSM of those well-known public figures who regularly give these activist judges verbal thashings. People like Sen. Cornyn, State Rep. Kleinschmidt, Cong. Rep. Mike McCaul, and the spokespeople for the Republican Party and Tee Party.

C'mon guys! Let us hear you roar!!

Zeety said...

Okay, wait. This has to be wrong because only judges appointed by democrat politicians can be activists.

Conservatives only appoint (and vote for) strict constructionists who strike down the the incorrect rulings of previous liberal activist judges.

Next thing you know someone will try to say conservatives are always fiscally responsible, they never spend money we don't have or raise taxes.

And of course, they always do what Jeebus would do because they are more righteous and moral than the rest of us. Exept when they are lying and cheating and having sex with underage boys in their Capitol Hill office, or having an orgy with hookers at their Mega Church.

This makes my head hurt.

Jerri Lynn Ward said...


I'm not famous, but I'm on the Travis County Republican Executive Committee and I find this decision to be outrageous! My view of "conservatism" is that it means that no one, including government employees are above the law. It means that if you are given greater authority (by being a government employee) you are subject to greater scrutiny.

This decision exonerates these people from greater scrutiny and accountability. That is not my idea of conservatism, although I'm thinking that I am going to have to find a different label for myself given that I also agree with Zeety's analysis.

Anonymous said...

What if I would choose for my birthdate to be kept confidential? Would it matter that I am not a gov employee, but rather a normal run of the mill Texan?
HOw is it fair that my birthdate is not private and the gov employees are?

Anonymous said...

So why don't you publicly post your birthdate, Grits, if there's no harm in it.

Gritsforbreakfast said...

8:17, I mentioned it on the blog a couple of weeks ago - it's 11/26/66. It's already public in DL records, voter registration rolls, etc.. No risk in revealing it in the least.

Be sure to send me a birthday card next year.

Zeety said...

1966? Well that explains alot.

Social Security won't be there because us Boomers are stealing it all. Have fun getting Ron Paul elected.


Gritsforbreakfast said...

Zeety, you're a strange bird.

Anonymous said...

I would expect that government employees personal information is equally private as an ordinary citizen. I think the difference would be people running for public election or holding an elected office. This is purely another effort to retain an avenue of harassment of government employees should the need ever arise. (Citing government employees with traffic convictions as persons having criminal convictions is an example of the BS spin harassment)

Anonymous said...

What motivated the Texas Supreme Court? Since just about all the large newspapers in Texas lean left politically, the Texas Supreme Court wasn't in a mood to do them any favors. What other motive could there be?

Anonymous said...

So then why don't the newspapers just buy the info? Aren't most newspapers owned by multinational corporations? I think the Texas Supreme Court's opinion is insane but how much does it really and truly cost to buy that information from DPS? Maybe the court was really saying "there's no such thing as a free lunch." You know, they aren't going to give it to you for free. Instead you're going to have to follow that employee, write down his license plate number and then look it up on Hmmmm, I wonder if any of the justices have an ownership interest in that website....

Gritsforbreakfast said...

10:18, you don't know what you're talking about - average citizens birthdates are already public in voter regstration rolls and in drivers license databases the state actually sells to private vendors. This is creating special protections for state employees average citizens don't enjoy.

10:22, I think it's ideology. The divergent views on the court simply represent Big Government Conservatism vs. the Small Government brand. Some conservatives want to use the power of the state to impose their vision of the world, others want to limit government. The SCOTX majority falls into the former class.

11:24, the issue isn't buying the DPS data, it's releasing the birthdates on government employees so you can match it to the DPS data and concretely identify that you're talking about the same person. E.g., if someone working for CPS has the same name as someone with a past conviction for child molestation, you couldn't tell if it's the same person if the state won't tell you its employees' DOBs.

Anonymous said...

Govenernment accountability came to an end when they decreed the State (government) has sovereign immunity. The State (means government) can now violate the Constitution and Laws of the United States and of this State with impunity. And your Right to Petition for Redress of your grievance with be dismissed under the color of this precedent and ruling.
It is the responsiblity of the STATE (government) to hold accountable, and seek recovery from,its Actors who violate our Constitutions and Laws. Not ours. Unfortunately, the best that can be done today is for Newspapers to try to identify and publicly embarass those who violate the law while acting in the name of our State (government).

Anonymous said...

Actually the Dallas Morning News used the then Conservator, Jay Kimbrough's request to run criminal background checks on all TYC employees to get their information. If this was not requested by the conservator the DMN would have found nada.

Zeety said...

Gritsforbreakfast: Zeety, you're a strange bird.

Why yes, yes I am, and I'm quite proud of it in case you haven't figured it out by now.

Those of us who have been put through the backend of the Texas Judicial System tend to get a little whacky at times. Sorry, but some days I'm just not in the mood to be all diplimatic and apologetic for my own faults, I want to point out the assholes in the crowd.

If you don't like it then don't write a blog about it, or don't let us comment. I really don't care.

But as long as you are here I'm gonna say all the stupid shit I feel like as long as I feel like it, regardless of what anyone thinks.

By the way, thank you for the outlet.