OKC refuses to disclose DOB of employee placed on administrative leave during investigation

Disclosing the birth date of a city employee placed on paid adminstrative leave as officials investigate mismanagement of public funds would constitute an warranted invasion of privacy, an Oklahoma City official told The Oklahoman on Thursday.

But, Assistant City Attorney Richard Smith indicated to the newspaper, disclosing the birth date of an employee not under investigation wouldn't be an invasion of privacy.

Say what?

Smith's explanation flies in the face of a revised opinion issued this week by state Attorney General Drew Edmondson.

Dates of birth of government employees are presumed open and should be released unless the agency can demonstrate that the employee's privacy outweighs the public interest in the record, Edmondson said. (2009 OK AG 33)

The opinion notes that agencies and other public bodies may not enact blanket policies declaring all employee DOBs confidential.

Edmondson told the newspaper last week he thinks agencies are "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,” he said.

In contrast, OKC officials don't seem hesitant to make the claim. OKC seems to think the public has little or no interest in an employee placed on administrative leave when city officials discovered federal grant funds had been mismanaged in a program overseen by the employee.

If not under these circumstances, when would the public have an interest that outweighs the employee's protection against a clearly unwarranted invasion of privacy?

The Oklahoman requested the birth date in an effort to conduct background research after the employee was identified as part of the investigation.

As reporter Bryan Dean noted, "Without a birth date to match to common names, it is impossible to determine a public employee’s criminal record or other vital background information."

Edmondson seems to have faith that government officials will give serious consideration to the public's interest in the disclosure of employee birth dates.

Oklahoma City officials are proving him wrong.

But they are demonstrating why the decision to release records should not be put in the hands of individual officials.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

FOI advocates chide OKC officials for not releasing employee’s DOB

The Oklahoman isn’t letting up on Oklahoma City officials who refuse to release the birth date of an employee placed on administrative leave while officials investigate the management of a federal grant.

In today’s article, freedom of information experts said the fear that releasing DOBs from 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,” reporter Bryan Dean summarized.

In an editorial today, the newspaper also took issue with the city’s refusal to release the name of another employee placed on administrative leave during the investigation. The editorial pointed out that the Open Records Act doesn’t prohibit the city from releasing the name or information about disciplinary actions. The newspaper called on city officials to “err on the side of transparency.”

City officials a week ago said the director of the program being investigated had been suspended. His name was released. The next day, city officials backtracked, saying he had been placed on administrative leave along with another employee, whom they refused to identify, the newspaper reported.

In refusing to release the birth date of the program director, city officials cited a statutory exemption allowing them to keep secret some information in personnel files if the release would "constitute a clearly unwarranted invasion of personal privacy.”

Birth dates are personal. But are they truly private?

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."

In Oklahoma, birth dates can be found in voter records and other public documents. 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.

Some readers seem to think the newspaper wants to publish the DOB. That’s not why the newspaper is seeking the information.

The DOB will help identify the person at issue as the newspaper checks other public records.

Keeping open the birth dates in public records isn’t important just for the news media.

Ever go into business with someone? Hire an employee? Concerned about your child’s school bus driver or baby sitter? What about your daughter’s new boyfriend?

Without a DOB, as Dean noted today, it can be impossible to differentiate in public records between two people with the same name.

City Attorney Kenny Jordan also has cited the Driver’s Privacy Protection Act as a reason for not releasing the date of birth from a personnel file. In an earlier posting, I explained why I don’t believe that federal statute applies.


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

OKC official cites federal law on drivers’ licenses as reason to block public access to information in city personnel files

Does a federal statute regarding drivers’ licenses block public access to some information in the personnel files of local government employees?

Oklahoma City Attorney Kenny Jordan thinks so – despite the wording of the federal statute and the Oklahoma Open Records Act.

The Oklahoman this week requested the date of birth of Ed Martin, a program director placed on administrative leave as OKC officials investigate potential problems with his program’s management of a federal grant.

Jordan cited a state Open Records Act exemption for “personal information within driver records” as one reason for not releasing the information. He noted that Martin’s date of birth is on his driver’s license, the newspaper reported.

But if Jordan’s reasoning were correct, then the public would not be entitled to know the names of any city employees because their names are also on their drivers’ licenses.

The Open Records Act specifically exempts “personal information within driver records as defined by the Driver’s Privacy Protection Act.” (OKLA STAT. tit. 51, § 24A.5(1)(c))

The Driver’s Privacy Protection Act specifically prohibits under most circumstances the release of “certain personal information from State motor vehicle records.” (18 U.S.C. § 2721)

“[A] State department of motor vehicles, and any officer, employee, or contractor, thereof, shall not knowingly disclose or otherwise make available to any person or entity personal information about any individual obtained by the department in connection with a motor vehicle record,” the statute states. (id. at § 2721(a))

It defines a motor vehicle record as “any record that pertains to a motor vehicle operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by a department of motor vehicles.” (id. at § 2725(1))

The federal statute doesn’t explicitly list date of birth among the personal information on a driver’s license that should not be disclosed.

"'Personal information' means information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information.” (id. at § 2725(3))

But even if it did, here are two reasons why the statute doesn’t block access to information in city personnel files:

1. The City of Oklahoma City and the Oklahoma Department of Public Safety, the state agency that issues drivers licenses, are NOT the same entity.

2. City government personnel files and state-issued drivers licenses are NOT the same document.

When officials cite ridiculously inapplicable laws as was done here, they not only frustrate the public’s right to know but also hurt their own credibility. Why resort to such a tactic unless no legitimate statutory exemption exists.

In coming days, the FOI Oklahoma Blog will examine Jordan’s other stated reason for non-disclosure and also the city’s explanation for not revealing the name of another employee placed on administrative leave during the same investigation.


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