Oklahoma City officials refuse to disclose DOBs of employees; newspaper criticizes DA for advice not to release county employees DOBs

Oklahoma City won't disclose the birth dates of its employees, saying that allowing the public to use the information to check criminal records, political contributions and other background information would not "assist citizens in the exercise of" their political power, The Oklahoman reported today.

Instead, Assistant City Attorney Richard Smith told the newspaper it must request the birth date for each employee individually and explain its "specific concern in relation to that employee."

Also today, the newspaper in an editorial criticized the decision last week by Oklahoma County District Attorney David Prater that disclosure of all county employee birth dates would constitute a clearly unwarranted invasion of the employees' privacy.

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

"I'm not concerned about your confusion," he told Dean.

The Oklahoman on Tuesday took exception to Prater's comment.

"Really? The county’s top prosecutor should care a lot about transparency when it comes to open records issues," the newspaper said.

The editorial noted that state Attorney General Drew Edmondson has released the names and DOBs of his employees.

"If Prater can do so, then he should," the newspaper said. "Otherwise he’s flouting the law and setting a poor precedent for the many city and county officials who look to him for guidance.

This blog, too, criticized Prater's reasoning a week ago and pointed out that his letter was mute on the most-important point: 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.

Oklahoma City, apparently taking a cue from Prater, offered no explanation of how disclosure of the information would constitute an unwarranted invasion of privacy.

In an e-mail Dec. 23, Smith told the newspaper, "After much thought and careful consideration, the City must deny your request for all employees’ dates of births."

That refusal -- just like Prater's -- runs contrary to a recent state attorney general opinion.

Earlier this month, Edmondson said the birth dates of government employees are presumed to be public information and should be released upon request. (2009 OK AG 33)

Officials may refuse to release the information only if they determine "the employee’s interest in nondisclosure is greater," he said. Disclosing the birth date would have to constitute an “unwarranted invasion of privacy.”

In short, the public interest is presumed to exist and is given greater weight than the employee's privacy.

But Oklahoma City has taken the opposite approach by presuming that disclosure is an unwarranted invasion of privacy and by requiring the requester to justify the public's interest. In this instance, Smith is saying no public interest exists.

Oklahoma City also has, in effect, instituted a blanket policy of nondisclosure, which Edmondson said governments are prohibited from doing. Officials must justify their refusal on a case-by-case basis, he said.

Unlike in many other states, attorney general opinions in Oklahoma are binding unless overturned by a court or the Legislature.

In 1919, for example, the Oklahoma Supreme Court said, "It is the duty of public officers, such as county superintendents, when in doubt as to the construction of an act of the Legislature, to follow, and not disregard, the advice of the Attorney General...." (Rasure Co. Supt. v. Sparks, 1919 OK 231, ¶ 7).

See also Branch Trucking Co. v. Okla. Tax Comm'n, 1990 OK 41, ¶ 10 (“Since 1919, the Attorney General's opinions have been binding on state officials unless the opinion is inconsistent with a final determination of a court of competent jurisdiction.”) (citing Rasure);

State ex rel. York v. Turpen, 1984 OK 26, ¶ 5 (“While in many states such an Attorney General's opinion is merely advisory, in this state it has been held such an opinion is binding upon the state official affected by it and it is their duty to follow and not disregard those opinions. This duty continues until a judgment of a court of competent jurisdiction relieves the public official of the burden of compliance.” (citing Rasure); and

2006 OK AG 35, ¶ 29 (“The effect of an Attorney General's Opinion in Oklahoma is different than it would be in many other states. In most jurisdictions, opinions or advice of the attorney general is advisory only, i.e., non-binding on the officials to whom it is addressed. In such jurisdictions attorney general opinions have in no sense the effect of judicial utterances. This is in sharp contrast to the role of the Attorney General in Oklahoma, where the Attorney General's opinion is binding on state officials to whom it applies, except only to the matter of constitutionality of statutes.”) (citing State ex rel. Fent v. State ex rel. Okla. Water Res. Bd., 2003 OK 29, ¶ 16).

Unfortunately, many local and state officials seem to pick and choose which attorney general opinions -- or which parts of opinions -- they're willing to follow and ignore those they don't like.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism