Judicial activism by TX Supreme Court creates new right to privacy, but only for government workers

The Corpus Christi Caller Times today published an excellent op ed from the director of Texas' Freedom of Information Foundation on the ill-considered judicial activism by the Texas' Supreme Court to create, based on no statute or precedent, a new privacy right which applies solely to government employees. The column opens:

 It is the job of the Texas Legislature to draft the laws of this state, not that of the courts. This doctrine, basic to the separation of powers of the branches of government, and a canon of conservative political philosophy, has been turned on its head by the Texas Supreme Court. In its zeal to exempt birth dates of governmental employees from release under the Texas Public Information Act, the court has created an entirely new right to privacy. This right to privacy applies only to governmental employees and only to requests under the Texas PIA. (The state can continue to sell date of birth information to insurance companies, private investigators, etc.)

The court not only found a right to privacy in birth dates that the Legislature has repeatedly declined to enact, but founded this right to privacy on a legal theory not raised in any papers in any proceedings before any of the courts that heard this case, and that was specifically disclaimed by the Comptroller as a basis to exempt dates of birth from release. Personnel records of employees of Texas governmental bodies are now subject to a special right to privacy, a balancing test that requires the requester to show evidence of governmental wrongdoing before access will be granted. The court's suggestion that it needed to pull this doctrine out of the air because the Comptroller did not act as a true adversary on behalf of governmental employees, after the Comptroller did everything in her power to close off access to birth dates except make an argument for which there was no legal support in Texas jurisprudence, is stunning.

It is difficult to see how the chief justice, or any of the justices who joined this opinion, can claim a conservative judicial philosophy. A conservative judge understands that the role of the judiciary is to follow the mandate of the Legislature, not to create its own law, but that is precisely what the court majority has done in the Comptroller case.

I couldn't agree more. When the decision came out, Grits' plaintive headline was "Activist Texas Supreme Court ruling neuters accountability."

From a process perspective, the next step on behalf of openness theoretically would be to go to the Legislature and ask them to re-open the information. But if history is any guide, that will be difficult to impossible. In 1996, the Texas Supreme Court completely gutted the theretofore generous (to requestors) law enforcement exception to the Public Information Act (Gov. Code 552.108) in a case styled Holmes v. Morales. Creating new law out of whole cloth and overturning three decades of Attorney General opinions, the Supreme Court of Texas decided that police records could remain closed in cases that did not result in a conviction, deferred adjudication, etc.. So if no one is successfully prosecuted, records about a case remain closed. E.g., a gunshot death is ruled a suicide - the family has no right to see the investigative file. Sometimes charges are dropped in cases where going to court would reveal police or prosecutorial misconduct - precisely the type of instance where you would want records public. It was really a terrible decision, even if few understood its implications at the time. About half of all open records requests - or at least half of instances where agencies seek AG rulings (no one tracks total requests) - relate to law enforcement and/or criminal justice agencies.

The following session, the Lege took up the issue. But instead of reinstating those records back to their prior state of openness - which dated back to the initial passage of the Open Records Act after the Sharpstown bank scandal - they codified the bad SCOT ruling and thus perpetuated the damage from judicial activism instead of ameliorating it. At the time I was working on a campaign to install civilian oversight at Austin PD and was an aggressive user of the public information act to access records about police misconduct. So I can say from personal experience that the difference in the amount of information one had access to before and after the SCOT ruling was like night and day: Huge swaths of valuable records just closed up overnight. From a government accountability perspective, it was a catastrophe.

My fear is the same thing will happen here with the SCOT ruling on a special right to privacy for government workers. Instead of rolling back this blatant judicial activism, I won't be surprised if the legion of legislative critics of judicial activism embrace this decision, just because it's activism on behalf of the majority party. If those critics wanted to take a stand against judicial law-writing, though, and in favor of government transparency, this would be a fine opportunity.