Stillwater Medical Center Authority says disclosing hospital officials’ salaries would be clearly unwarranted invasion of privacy, sues requester for $3,000 cost of copying records, held ‘retreats’ in Tulsa, OKC

The Stillwater Medical Center Authority says disclosing the salaries of the hospital’s top officials would put it at a hiring disadvantage and “would constitute a clearly unwarranted invasion” of the employees’ privacy, according to documents filed in an open records lawsuit against the public authority.

Last week, the hospital authority filed a counterclaim, seeking the $3,038.25 cost of copying 12,153 pages that the requester has not picked up.

The requester, former Stillwater commissioner Henry “Hank” Moore Jr., sued the hospital authority in late August. He was seeking, among other information, the salaries for the medical center’s top five senior management officials. (See Moore v. Stillwater Medical Center Authority, No. CJ-2010-408 (Payne County) (Aug. 24, 2010))

The Stillwater Medical Center Authority refused to disclose the salaries based on advice from the law firm McAfee & Taft in Oklahoma City.

That advice, written by a summer associate, relied upon a 2009 attorney general opinion on whether the birth dates of government employees are public records when contained in their personnel files. (2009 OK AG 33)

In that opinion, Attorney Drew Edmondson said the birth dates of government employees are presumed to be public information and should be released upon request. (¶ 11)

Officials may refuse to release the information only if they determine that disclosing the birth date would constitute an “unwarranted invasion of privacy,” Edmondson said.

Relying upon that opinion, McAfee & Taft concluded that the hospital authority would be required to make the salary information public unless the board designated "salary and payroll information as confidential" because disclosure "would result in a clearly unwarranted invasion of the employee's privacy."

On July 27, the Stillwater Medical Center Authority voted that "disclosure of employee-specific salary information would constitute a clearly unwarranted invasion of privacy of Hospital employees." The agenda item was "Determination if Disclosure of Certain Information Would Constitute a Clearly Unwarranted Invasion of Privacy."

If the board determined that release of ALL employees' salaries would constitute an invasion of privacy, then the board's action violated the attorney general opinion. Edmondson had said such determinations must be made on an individual basis. "A general policy prohibiting disclosure would constitute a legislative determination beyond the authority of a public body," he said. (¶ 11)

To make the determination on an individual basis, the public body would have to weigh the public's interest in disclosure against the employee's interest in non-disclosure, Edmondson said. (¶ 31)

Describing this weighing of competing values, McAfee & Taft's memo said:

The Attorney General considered whether knowledge of a birth date would in any way assist the public in evaluating a public employee and determined that the information would not be helpful to the public. The privacy interest of employees outweighed the public interest.

However, that is not what the final AG opinion states.

The opinion originally said, “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.”

But that was deleted from the revised opinion after Edmondson told The Oklahoman:

My opinion is that an agency is going to have difficulty claiming the exemption as a clearly unwarranted invasion of personal privacy. 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. (¶ 11)

Shortly after issuing the revised opinion, Edmondson released the names and birth dates of his employees.

Even so, McAfee & Taft had no trouble determining that employee privacy outweighs the public interest, saying:

On the one hand, knowing the salary amounts paid by a public body to its employees could assist the public in judging the efficiency of a public body and of its employees. On the other hand, it is likely that most employees would prefer that their salary information remain private. Animosity among public employees could also arise if employee-specific salary information becomes available, especially if significant variations in compensation exist among employees.

Overall, it would be reasonable for the trustees of the Authority to determine that the public interest in obtaining general salary information does not outweigh the interest of the employees in maintaining the confidentiality of such information and that the disclosure of employee-specific salary information would constitute a clearly unwarranted invasion of privacy.

I disagree with that conclusion. First, that determination in favor of employee privacy is not an individual application but rather a blanket policy, which the attorney general opinion said is prohibited.

Second, public employees' possible preference for secrecy does not outweigh the inherent right of Oklahomans "to know and be fully informed about their government." (See OKLA. STAT. tit. 51, § 24A.2)

Third, "animosity among public employees" because of "significant variations in compensation" is unrelated to privacy. It's a reason why the trustees and hospital officials want to keep employees in the dark. Which supports the public interest in disclosure. Why should "significant variations in compensation exist among [government] employees" doing the same or similar jobs?

An Oklahoma court seems unlikely to rule that the salaries of public hospital employees should be kept secret from the public. Courts in other states have consistently ruled that disclosure of public employee salaries does not constitute an unwarranted invasion of privacy and that the public has a right to know what those employees earn. (I will discuss examples of such cases soon on the blog.)

But here's the most important reason why an Oklahoma court will side with the public's need to know: The Oklahoma Open Records Act requires that the salaries of public employees be made public.

The balancing of privacy and public interests prescribed by the attorney general for birth dates came about only because birth dates are not mentioned in the Open Records Act. In contrast, the statute says:

All personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying including, but not limited to, records of: ... the gross receipts of public funds. (OKLA. STAT. tit 51, § 24A.7(B)(2))

McAfee & Taft's memo says the Open Records Act "does not address salary information." I believe that is incorrect. Although the statute doesn't use the word "salary," salaries are included in the gross receipts paid to the employees.

After the lawsuit was filed, Stillwater Medical Center President and CEO Jerry Moeller disclosed his salary to Moore, The Stillwater NewsPress reported.

Moeller said his salary is $276,261 with a bonus last year of $11,050. Moeller receives a car allowance of $7,200 and the use of a Karsten Creek membership valued at $7,600, the newspaper reported.

Certainly seems like information the public should know about a public employee.

In a court document filed on Oct. 18, the hospital authority cited other reasons for not releasing the salary information, including:

• Releasing the information may give other hospitals an unfair competitive advantage
  
• Disclosure was detrimental to the competitive interests and advantage of the Hospital
  

The hospital authority also contended that the salary information doesn’t have to be disclosed because the medical center is “owned and operated by a public trust, not supported by tax dollars, unlike governmental agencies and subdivisions.”

However, as the hospital authority conceded in its response to the lawsuit, the Oklahoma Court of Civil Appeals held in 2003 that the Stillwater Medical Center is “a political subdivision for the purposes of the Oklahoma Governmental Torts Claim Act.” (See Elledge v. Stillwater Medical Center, 2003 OK CIV APP 6)

More importantly, the hospital authority also conceded that as a political subdivision of the state, it is subject to the Open Records and Open Meeting laws.

The hospital authority also said in its court filing that it would not conduct meetings outside of Stillwater. Moeller had told The Stillwater NewsPress in August that the board had in years past conducted “retreats” in Tulsa and Oklahoma City until City Attorney John Dorman “advised us that it might not keep with the spirit of the law.”


That's an understatement considering the Open Meeting Act requires that public meetings "be held at specified times and places which are convenient to the public." (OKLA. STAT. tit. 25, § 303)

The Stillwater Medical Center Authority also seems to be violating the Open Meeting Act by not keeping minutes of its executive committee meetings.

Among the exhibits filed by Moore is a letter to him from Moeller in which Moeller writes, "There is no problem with [providing] the agendas and minutes of the regular and special Board meetings, but we do not keep minutes at any Executive Committee meetings."

But the Open Meeting Act's definition of public body includes "all committees or subcommittees of any public body.” (OKLA. STAT. tit. 25, § 304(1))

The statute also requires that each public body keep minutes of its meetings. (OKLA. STAT. tit. 25, § 312)

So why aren't minutes kept of the board's executive committee meetings?

The Stillwater Medical Center Authority would do well to keep in mind these admonitions by our state appellate courts:

Because the Open Meeting Act was “enacted for the public’s benefit,” the statute “is to be construed liberally in favor of the public,” the state Supreme Court said in 1981. (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

The principle is “very simple,” the state Court of Civil Appeals said that year. “When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State.” (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57)

That includes even the Stillwater Medical Center Authority.

 

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications