Tuesday, December 22, 2009

Okla. Co. DA: Disclosure of county employee DOBs would be clearly unwarranted invasion of privacy; Okla. AG releases employee birth dates

Oklahoma County District Attorney
David Prater says disclosing the birth dates of all county employees would constitute a clearly unwarranted invasion of the employees' privacy, The Oklahoman reported today.

The newspaper requested the information so it could check the names of county employees against databases of criminal records, political contributions and federal bankruptcy filings.

Reporters recently discovered that an Oklahoma City employee had filed personal bankruptcy about a month before being placed on paid administrative leave because of an investigation into the misuse of public funds. Reporters were able to learn of the bankruptcy only after city officials disclosed the employee's date of birth.

In a formal opinion stemming from the city's initial refusal to disclose the birth date, state Attorney General Drew Edmondson said government employee birth dates are presumed open and public bodies may not enact policies blocking access to all employee dates of birth. (2009 OK AG 33)

Edmondson said public bodies may withhold the information only after demonstrating that the employee’s privacy outweighs the public’s interest in disclosure. Such balancing must be done on a case-by-case basis, he said.

On Monday, Edmondson released the names and birth dates of his employees, the newspaper reported.

But Prater, in a letter to the newspaper, said he would not give "approval for the blanket release of the birth dates of county employees" and was advising Oklahoma County Clerk Carolynn Caudill not to release the information.

That's essentially a blanket denial of the information, which Edmondson said was prohibited under the state Open Records Act.

In the letter, Prater told the newspaper, "I find your request for the birth dates of county employees clearly an unwarranted invasion of privacy of Oklahoma County employees."

Prater gave no explanation for his decision in either the letter or later to reporter Bryan Dean.

"I'm not concerned about your confusion," he told Dean. "The letter speaks for itself."

The letter, though, is mute on the most-important point.

Prater provided no reasoning for why the public's interest in learning about its employees was so outweighed by individual employee privacy that disclosure would constitute an unwarranted invasion of privacy.

Taxpayers deserve more thoughtful, informative explanations from elected officials than the short-tempered one given by Prater.

All this, though, brings us full circle to the original issue: Are birth dates such truly private information that disclosure constitutes a clearly unwarranted invasion of privacy?

Freedom of information experts say the fear that disclosing DOBs in public records will cause identity theft is unjustified. “Those fears aren’t backed up with statistics or even anecdotal evidence showing public records are a source for identity thieves,” summarized Dean in an article Aug. 31.

As Edmondson and this blog noted months ago, birth dates can be found in voter records and other public documents in Oklahoma. The same can’t be said for the Open Records Act-provided examples of an unwarranted invasion of privacy.

Under the statute, governments “
may keep personnel records confidential … where disclosure would constitute a clearly unwarranted invasion of personal privacy such as employee evaluations, payroll deductions, employment applications submitted by persons not hired by the public body, and transcripts from institutions of higher education maintained in the personnel files of certified public school employees.” (OKLA. STAT. tit. 51, § 24A.7(A)(2))

Employee evaluations and payroll deductions are not available in other public records. Birth dates are.

Employee evaluations and payroll deductions are documents. Birth dates aren't.

Meanwhile, the statute says the employment applications of workers hired by government are open to the public.

Courts outside Oklahoma generally have agreed that people do not have a reasonable expectation of privacy when the information is contained in statutorily mandated public documents directly related to births and deaths, marriages, divorces, arrests, land sales, or other matters of "public record."

A federal appellate court, for example, said a right of privacy did not protect the name, age, and date of birth of registered sex offenders because the information was "already fully available to the public."

The issue seems likely headed to court in Oklahoma. Expect an appeal regardless of which side wins at trial.

Until then, the decision is left in the hands of individual officials such Prater. Some will give credence to the public interest. Others won't.

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