Privacy rights vs. the public's right to know:
A precarious balancing act

By Keith Elkins, FOIFT Executive Director

Throughout the 81st legislative session, lawmakers struggled to find a balance that may not exist - and which may not even be necessary. A balance that seems to be driven more by an attempt "to do something" to help stem the growing threat of identity theft and block illegitimate invasions of "personal privacy" of governmental employees, even though these attempts may provide only minimal protection, at best.

Several bills were introduced with the intent of providing "protection for governmental employees' right to privacy" which may ultimately provide little meaningful protection yet lead to a serious deterioration of recent efforts to "shine sunshine" or "openness" to the governmental process.

At the core of these efforts are attempts to shield existing public information from future public review: prohibiting from public disclosure everything from an individual’s DOB (date of birth), work schedule, salary information, parking space assignments, etc.

This is a threat to Open Government and a step backward in making sure governmental information remains available for public inspection.

Without this information it will be extremely difficult, if not impossible, for media organizations and public interest groups to inform the public of serious abuses such as the sexual abuse scandal within the Texas Youth Commission, “Fight Clubs” at the Corpus Christi State Facility and South Oak Cliff High School in Dallas, Texas, Court of Criminal Appeals Judge Sharon Keller’ apparent failure to disclose significant real estate holdings, sex offenders teaching children in the classroom (WOAI-TV, San Antonio) and a list that goes on and on.

The public benefit simply outweighs any real or perceived risk to state government employees. With employees’ DOBs accessible under the Texas Public Information Act, media organizations routinely provide significant public service by exposing serious security and employment lapses within governmental agencies, such as these:

• “According to official documents obtained by The Dallas Morning News, many prison staffers at the West Texas State School complained about possible sexual abuse of inmates to their immediate bosses and to Texas Youth Commission officials in Austin. But, for more than a year, no one in charge did anything to stop it…”

• “…The 11 Corpus Christi State School employees accused of forcing profoundly disabled residents into a late-night "fight club" were hired despite poor employment histories and little work experience beyond fast-food jobs, according to personnel records obtained by The Dallas Morning News.”

• “…As The Dallas Morning News' Steve McGonigle revealed yesterday, the judge failed to disclose more than $2 million in real estate holdings, as required by law.” Throughout this recent session, testimony provided by several journalists addressing House and Senate committees made it clear these types of journalistic investigations, however, would not be possible without future release of DOB information used for large scale database comparisons.

In the end, some state lawmakers continued to insist that there’s simply too great a risk to continue giving out DOB information on governmental employees in response to “public information requests.” Even though, according to information obtained from the Texas Comptroller of Public Accounts under the Texas PIA, since 2006 there have only been two public information requests for employee DOB information, In other words, in three years other than from official news organizations, there’ve been only two requests and both of those were from former or current state employees. And, there has not been one specific example provided where any DOB request has ever resulted in a case of ID theft.

I’d like to believe logical arguments and facts prevailed. In the end, both SB 1912 and HB 4207 died in committee. Time simply ran out. Or, did it?