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:

• Open Records Madness (Dallas News) See also a related blog post from the DMN Investigates blog.
• Texas government employees who are felons, drunk drivers and embezzlers have won the day (Texas Watchdog)
• Public's right to know has been undermined (Corpus Christi Caller Times)