AG: Gov’t may keep confidential employee DOBs and names of employees placed on paid administrative leave

Public bodies may keep employee dates of birth confidential when officials believe the employee’s privacy outweighs the public’s interest in disclosure, under a state attorney general opinion released this week.

Attorney General Drew Edmondson also said a public agency may keep secret the names of employees placed on paid administrative leave if, under the agency’s personnel policies, that action doesn’t constitute “a ‘final’ or ‘disciplinary’ action, nor a ‘final disciplinary action resulting in loss of pay, suspension, demotion, or termination.’”

But once the investigation is complete and a final disciplinary action occurs, “the record(s) indicating that action must be available for public inspection and copying,” Edmondson said.

The written opinion stemmed from The Oklahoman’s request for the birth date of an Oklahoma City employee placed on paid administrative leave during an investigation into the management of a federal grant. City officials also refused to identify another employee placed on paid administrative leave during the investigation.

At that time, Edmondson publicly said governments should err on the side of transparency regarding the release of employee birth dates. He said it would be difficult to contend that DOBs are private when they are found in a number of public records.

At the request of Oklahoma City officials, state Sen. Debbe Leftwich requested a formal opinion from Edmondson.

In that opinion, released on the AG Web site Wednesday, Edmondson said public bodies have the discretion to determine if disclosing an employee’s DOB is an “unwarranted invasion of privacy.”

“In making such a determination, the public body must weigh the employee’s interest in nondisclosure against the public’s interest in disclosing the record,” Edmondson said. “If the public body determines that the employee’s interest in nondisclosure is greater, it may keep the birth date confidential….”

Edmondson seems to have faith that officials will sincerely balance these two competing interests and not reflexively discount the public’s interest in disclosure.

But the opinion seems to provide government agencies with a ready-made answer favoring nondisclosure, stating:

“Disclosing employee’s birth dates seems as unlikely to assist citizens in finding out what their government is up to as disclosing employee’s ‘payroll deductions’ or the employment applications of persons not hired by the public body, which the ORA expressly allows public bodies, in their discretion, to keep confidential.”

The opinion does have one bright spot for open-government advocates. Edmondson rejected Oklahoma City’s argument that the federal Driver’s Privacy Protection Act blocked access to the birth dates of its employees.

Using the same reasoning as this blog did in August, Edmondson said the statute doesn’t list DOBs among the personal information on a driver’s license that should not be disclosed and the statute applies to the state Department of Public Safety, not the city.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism