Monday, January 16, 2012

Employee records of EMSA ambulance drivers should be subject to the state's Open Records Act

The Tulsa World requested from EMSA the full names, dates of birth, job applications, disciplinary actions and other identifying information on paramedics and EMTs following a fatal accident involving an EMSA ambulance in Oklahoma City on Dec. 10.

EMSA provided first and last names, hire dates and medical license numbers for 518 employees of Paramedics Plus -- a private contractor used by EMSA to hire the paramedics and EMTs, perform background checks and maintain the employee records.

But Parmedics Plus refused to provide other employee information, saying such records are private and not subject to the Open Records Act.

However, that information should be subject to the state Open Records Act under a series of attorney general opinions applying our open government laws to private nonprofit and for-profit corporations.

Here's why:

The Emergency Medical Services Authority is a public trust authority of the Tulsa and Oklahoma City governments. It manages ambulance services for more than 1 million people in the two cities and surrounding areas.

EMSA says nearly three-quarters of its operating budget comes from patient billing revenues.

But cities provide the rest either directly through general fund allocations or indirectly through a fee placed on residents' utility bills. For example, the agency receives about $4.8 million a year from a monthly utility-bill fee paid by Tulsans, the Tulsa World reported.

EMSA owns the 89 ambulances, which cost up to $150,000 each.

The public agency knows the names of employees who drive its ambulances but doesn't possess the job applications or records of disciplinary actions, an EMSA attorney told the Tulsa World.

Those records are in the hands of Paramedics Plus, a wholly-owned subsidiary of East Texas Medical Center (ETMC), based in Tyler, Texas. (ETMC is a not-for-profit organization that operates the nation's second-largest rural EMS system with a service area spanning more than 17,000 square miles, according to the EMSA website.)

EMSA's Board of Trustees apparently didn't include in its contract with Paramedics Plus a provision treating the employee information as open records to the same extent as those of government employees.

Even so, a series of attorney general opinions indicates that those employee records are subject to the personnel provisions of the Oklahoma Open Records Act.

A 1981 opinion said the statute applies to private nonprofit corporations that "have entered into contractual arrangements with municipalities to operate or maintain public property for and on behalf of such municipalities...." (1981 OK AG 184, ¶ 7)

Such corporations "have been entrusted with the affairs of government," the opinion said. "Especially is this so where the contract vests discretion in the nonprofit corporation to possess and operate public property for a joint purpose of the municipality and the nonprofit corporation." (Id.)

This ruling applied to the records "pertaining to the operation or maintenance of public property," the opinion said. (Id. ¶ 10) (emphasis added)

"To find otherwise would permit public officials to abdicate to private parties their duties with respect to keeping records concerning such matters and would place such records beyond the reach of interested members of the public desiring to become informed upon matters pertaining to the operation and maintenance of public property," the opinion said. (Id.) (emphasis added)

It concluded:
Where a municipality has contracted with a nonprofit corporation to operate public property, records pertaining to the operation, maintenance or improvement of such property or the administration or performance of the contract are public records open for public inspection, even though such records may be kept and maintained in the custody of the nonprofit corporation.
Subsequent attorney general opinions have said for-profit and nonprofit corporations can also be subject to the Open Meeting Act.

A 2002 opinion explained:
Although private for-profit and non-profit organizations are not mentioned in the [Open Meeting Act] definition of public body, that does not necessarily prevent the Act from applying to private organizations. There are at least two situations in which a private organization will be subject to the Act: (1) if the private organization is a "subordinate entity" which exercises actual or de facto decision-making authority on behalf of a governmental body; or (2) if the private organization is "supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property." (2002 OK AG 37, ¶ 2) (emphasis added)
While those opinions focused on whether the corporations were "supported in whole or in party by public funds," that is only one of three qualifiers found in both statutes.

To be a public body under the Open Meeting Act, the entity "must have one of three characteristics:
  1. it must be supported in whole or in part by public funds;
  2. it must be entrusted with the expending of public funds; or
  3. it must administer public property.”

    (2002 OK AG 5, ¶ 7 (citing OKLA. STAT. tit. 25, § 304(1)).
(See also 2002 OK AG 42, ¶ 3 ("The Silver Haired Legislature, as a group of individuals working on a specific project or general goal, would be considered a public body within the definition of the Open Meeting Act if (1) it is 'supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property,'; or (2) it is a 'subordinate entity' created by a public body and exercises actual or de facto decision-making authority on behalf of that public body.") (emphasis added))

Likewise, under the Open Records Act, a public body must be
  1. Supported in whole or in part by public funds, OR
  2. Entrusted with the expenditure of public funds, OR
  3. Entrusted with administering or operating public property.

    (OKLA. STAT. tit. 51, § 24A.3(2))
This doesn't mean that, as a 2002 attorney general opinion acknowledged, the records of all companies selling goods or services to government are subject to the state's open government laws. (2002 OK AG 37, ¶ 17)

But Paramedics Plus employees have been entrusted with operating the publicly owned ambulances on behalf of a public agency, EMSA. Therefore, their personnel files should be subject to the provisions of the Open Records Act.

Oklahomans are entitled to know and should know who these employees are, their qualifications and any disciplinary actions taken against them.

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

The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

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