Tuesday, December 8, 2009

AG revises opinion: DOBs of government employees presumed open, public bodies must determine privacy interest on a case-by-case basis

Government employee birth dates are presumed open unless the public body can demonstrate that the employee’s privacy outweighs the public’s interest in disclosure, according to a revised opinion issued by the state attorney general Tuesday.

Oklahoma Attorney General Drew Edmondson said public bodies must decide each case individually and may not enact policies blocking access to all employee dates of birth. (2009 OK AG 33)

In the revised opinion, Edmondson also deleted a sentence questioning the public interest in knowing government employee birth dates.

However, just as in the opinion issued last week, 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….”

Last week’s opinion seemed weighted in favor of nondisclosure and was criticized for leaving the decision in the hands of public officials. An editorial by The Oklahoman today expressed doubt that public officials would be likely to disclose the birth dates of employees.

“Instead, we foresee them regularly parsing the definitions of 'unwarranted' or the like when reporters or others try to dig for information in an effort to serve the public interest,” The Oklahoman said.

But the revised opinion is more in line with what Edmondson told The Oklahoman last week when he defended his previous writing.

“My opinion is that an agency is going to have difficulty claiming the exemption as a clearly unwarranted invasion of personal privacy,” Edmondson had told the newspaper. “My view is that the conditions under which birth dates would be confidential would be rare.”

To the new opinion, Edmondson added:

“It should be noted that since the Legislature did not specifically make dates of birth confidential the presumption would be that they are open unless the exception is (1) claimed and (2) found to outweigh the public interest in the requested record. This determination, since it involves a determination of ‘personal’ privacy must be individual in application. A general policy prohibiting disclosure would constitute a legislative determination beyond the authority of a public body.”

He also deleted a statement that seemed to favor nondisclosure.

“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 original opinion had stated.

Like the old one, today’s opinion says 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.’”

Edmondson also again rejected Oklahoma City’s argument that the federal Driver’s Privacy Protection Act blocked access to the birth dates of its employees.

Update: The attorney general's spokesman told The Oklahoman that Edmondson wanted to "clarify the intent of the opinion."

"It bothered him (Edmondson) that some of the language in the original opinion caused people to believe that an agency of government could simply say, ‘We’re not going to give you any birth dates,’” said Charlie Price.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

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