Oklahoma Supreme Court denies public access to government employees' birth dates and worker identification numbers, says no valid public interest in knowing the information

Public access to government employees' birth dates and worker identification numbers would constitute an unwarranted invasion of privacy, the Oklahoma Supreme Court ruled Tuesday.

(Okla. Pub. Employees Ass’n v. Oklahoma Office of Pers. Mgmt., 2011 OK 68). Opinion begins on Page 14.)

In coming to that conclusion, the seven-justice majority found no value in the public knowing the information but accepted as gospel the claim that access would cause identity theft and other harms.

"The information requested here could result in cases of identity theft and compromise of government computer systems yet bring little, if any, information to public attention which would enlighten Oklahoman citizens as to how their government runs, performs, or spends their tax dollars," they said. (Id. ¶ 3)

"There is simply no instance in which we can fathom how such information would advance the public's interest in assuring that the government is properly performing its function. (Id. ¶ 35)

"The purpose of openness in government is not fostered by disclosure of information about private citizens that is accumulated in various government files but reveals little or nothing about an agency's own conduct. (Id. ¶ 37)

"Rather, government agencies and the courts have a special obligation to protect the public's interest in individual privacy by acknowledging that public records are being harvested for personal information about individuals, contributing to a surge in identify theft, consumer profiling, and the development of a stratified society were individuals are pigeonholed according to the electronic trail they leave of transactions that disclose personal details." (Id.)

The case revolves around which information in a government employee's personnel file may be exempted under the state Open Records Act. A public body may keep confidential those personnel records "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))

In a one-paragraph dissent, Justice Yvonne Kauger, joined by Chief Justice Steven W. Taylor, saw the case as "a matter of statutory construction."

Kauger noted that although the Legislature had amended the personnel exemption three times since 1985, "it had never chosen to include the date of birth."

"If the Legislature desires to do so, it certainly can," Kauger wrote.

A 2009 attorney general had said the birth dates of government employees were presumed to be public information when contained in their personnel files and should be released upon request. Officials could refuse to release the information only if they determined that disclosing the birth date would constitute an “unwarranted invasion of privacy” that outweighed the public interest in disclosure. (2009 OK AG 33, ¶ 11)

Then-Attorney General Drew Edmondson told The Oklahoman:

My [personal] 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.

Shortly after issuing the 2009 opinion, Edmondson released the birth dates of his employees.

In the opinion, Edmondson said public officials must balance the interests involved, "weighing the public's right of access to the records, which the Legislature has declared is substantial, against the employees' interests in nondisclosure." As part of that balancing,

A public body may determine that the ORA's public policy raises the question, 'How does disclosing an employee's birth date allow citizens to know what the government (or a particular employee) is up to, and whether he or she is properly discharging his or her duties?' If the purpose of the ORA is to 'ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power,' the operative question is 'how will knowing an employee’s birth date assist citizens in the exercise of that political power?’ (2009 OK AG 33, ¶ 10)

On Tuesday, Justices Tom Colbert, Joseph M. Watt, James R. Winchester, James E. Edmondson, John F. Reif, Douglas Combs and Noma Gurich found that the balance between public interest and employee privacy "must tip in favor of privacy." (2011 OK 68, ¶ 35)

"We determine that when the balancing test is applied to the facts presented, where significant privacy interests are at stake while the public's interest either in employee birth dates or employee identification numbers is minimal, release of birth dates and employee identification numbers of State employees 'would constitute a clearly unwarranted invasion of privacy,'" they said. (Id. ¶ 39)

They gave no weight to the public's interest in knowing the information. (Id. ¶ 35)

"Although state employees' privacy interests may be diminished somewhat by taking a position in an agency subject to public scrutiny, they do not surrender all privacy rights by taking a government employment," the majority said. "However, it is important to note that the policy of public disclosure is purposed to serve the public interest and not to satisfy the public's curiosity. Here, the information sought serves no valid public interest." (Id.)

But open government advocates fear that exempting government employees' birth dates and identification numbers from their personnel files would severely hamper the ability of Oklahomans to know and be fully informed about their government. State law already exempts public employees' Social Security numbers, home addresses and telephone numbers.

By barring access to the birth dates and employee identification numbers, the court has made it virtually impossible for the public to determine if government employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions. The public also will find it virtually impossible to track workers across government jobs.

But the seven justices discounted the ability of the press and public "to identify one state worker from another" as "too 'narrow and limited' on the public interest scale to tip the balance of interests in favor of disclosure." (Id. ¶ 34)

The justices also shrugged off the fact that birth dates are available in other public documents, such as voter registration records.

"The fact that information may be available to the public in some form or from another source does not dissolve the individual's interest in controlling the dissemination of information regarding personal matters," they said. (Id. ¶ 34)

In contrast, Drew Edmondson had publicly said it would be difficult to contend that birth dates are private when they are found in a number of public records.

Instead, the justices placed a great deal of weight on the fear of identity theft, saying:

Since September 11, 2001, the ramifications of identity theft have proven much more grave than previously thought. Identify theft, a huge problem in financial fraud, now has implications for national security.

The growing problem of identify theft is facilitated when birth dates are combined with other personal information. Simply combining the release of a person's age along with other factors may make the individual vulnerable to those targeting a certain age range for scams.

With both a name and a birth date, one can obtain information about: an individual's criminal record; arrest record (which may not include disposition of the charges); driving record; state of origin; political party affiliation; social security number; current and past addresses; civil litigation records; liens; property owned; credit history; financial accounts; and quite possibly, information about an individual's complete medical and military histories; and insurance and investment portfolios. (Id. ¶ 32)

But a data privacy expert speaking at FOI Oklahoma Inc.'s 2010 Sunshine Week conference said keeping birth dates secret won't help protect workers' identities or safety because the information already is available elsewhere.

"What I would tell them is stop trying to shut the barn door after the horses are gone. It's a lack of understanding by policy makers to what an effective countermeasure is to identity theft," said Richard J.H. Varn, chief information officer for the city of San Antonio and executive director of the Coalition for Sensible Public Records Access.

Varn also emphasized that public records are not a source of information for identity thieves. However, exempting the birth dates from public records does create a privacy problem, he said.

When public identifiers are not made public, it is nearly impossible to distinguish among people with the same name. It leads to more false positives and false negatives, Varn told the National Freedom of Information Coalition conference in 2009.

For example, when The Oklahoman compared a state payroll data to the state sex offender registry, the newspaper found 778 state employees who shared first and last names with registered sex offenders.

"Without dates of birth, which are included in the sex offender registry, it is impossible to determine whether these workers may be sex offenders," the newspaper noted.

For years, The Oklahoman and Tulsa World have received birth dates of public employees. In 2010, for example, Oklahoma City Public Schools released birth dates for more than 5,000 district employees in response to The Oklahoman's open records request.

And the state of Oklahoma has made tens of millions of dollars selling personal information, including birth dates and other personal information of all state drivers, The Oklahoman and Tulsa World reported last year.

Where are the incidences of these records being used to steal people's identities?

Instead of relying upon facts, the seven justices emphasized that the Legislature had intended to create "a non-exclusive list of information" whose release would result in an unwarranted invasion of privacy when it created the personnel exemption to the Open Records Act. (Id. ¶ 39)

However, they ignored that legislators had not exempted birth dates when they blocked public access to government employees' Social Security numbers, home addresses and telephone numbers. And for the past two sessions, legislators rejected attempts to add birth dates to the list of exempted information.

The justices, instead, chose to add birth dates to the list themselves. That's called judicial activism: When a court takes the opportunity to solve what it perceives as a social problem rather than relying upon the legislative branch to do so.

In this case, the seven justices see public access to personal information in government records as a social problem. But their decision is based on their subjective fears rather than facts. By adding birth dates to the list of exempted information, they did what the elected representatives of the people had chosen not to do.

To find no valid public interest in access to the government employees' birth dates and identification numbers is nonsensical and insulting to the public's intelligence.

The ruling on Tuesday is a serious blow to the public's ability to act as a watchdog of its government's activities. The court's reasoning is an affront to the public's right to know and be fully informed about its government.

For more background on the case, click here.

Read reactions to the ruling.


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.

State troopers ask to join OPEA lawsuit; Judge recuses herself

The Oklahoma Troopers Association wants to join with a state employees association in asking a judge to stop the state government from releasing basic personnel information on state workers.

The Troopers Association today filed a motion to intervene as a plaintiff in the Oklahoma Public Employees Association's request for the injunction.

CJ-2010-2623, Oklahoma Public Employees Association v. Oklahoma Office of Personnel Management

Judge Noma D. Gurich recused herself from the case today. She is married to John E. Miley, deputy general counsel for the Oklahoma Employment Security Commission.

The case has been transferred to Oklahoma County Judge Bryan Dixon.

The hearing has been reset for April 9.

The Oklahoman filed a motion Thursday to intervene as a defendant.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

OPEA asks judge to stop state from providing newspaper with information on state employees

A state employees group today asked an Oklahoma County judge to stop the state government from providing The Oklahoman with the birth dates and other basic personnel information on state workers.

A hearing on the injunction requested by the Oklahoma Public Employees Association has been set for April 7 before Judge Noma D. Gurich. (CJ-2010-2623, Oklahoma Public Employees Association v. Oklahoma Office of Personnel Management)

(Read the filing.)

On its Web site, OPEA said, "A person’s date of birth is the missing piece in the identity puzzle if someone is trying to commit fraud or harm an individual."

However, national experts on data privacy have repeatedly said a birth date alone is not sufficient information to steal a person's identity and that public records are not a source of data for identity thieves.

In February, The Oklahoman requested basic employee information, including dates of birth, payroll records and employee identification numbers, for all state employees.

A number of local government agencies have long provided the birth dates of their employees to media outlets with no reported instances of identity thefts caused by the disclosure. Birth dates are also available in voter registration files and in many other public records.

State law already exempts state workers' home addresses, home telephone numbers and Social Security numbers. Last legislative session, however, state Rep. Randy Terrill, R-Moore, opened up the home addresses for OPEA's use, The Oklahoman reported Sunday. (Read related blog.)

Read coverage of OPEA's filing: State worker group seeks to block release of records, by Paul Monies, The Oklahoman, 3.30.10.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Rep. Terrill makes state employee home addresses available to OPEA

Rep. Randy Terrill quietly opened up the confidential home addresses of state employees to the private employees group that advocates for state workers and to which he belongs, The Oklahoman reported Sunday.

The home addresses, home telephone numbers and Social Security numbers of state employees were exempted from the Open Records Act by state legislators in 1992. The same information for former state employees was exempted in 2003.

But in the closing days of last year's legislative session, The Oklahoman reported, a provision making the home addresses available to the Oklahoma Public Employees Association was tacked onto Terrill's HB 2245, the Oklahoma Criminal Illegal Alien Repatriation Act of 2009.

The OPEA named Terrill, a Republican from Moore, its "Legislator of the Year" for his effort to provide the state employee mailing list, the newspaper noted.

HB 2245 created a separate statute making the home addresses available to any organization that limits membership to state employees and has at least 2,000 members. (OKLA. STAT. tit. 74, § 3119)

Under the statute, the organization "may annually send one general mailing to all state employees." The Office of State Finance must first agree to the "method of providing a list of the names and addresses of the state employees to accomplish the mailing, while preserving the confidentiality of the list."

The Oklahoman reported that since the statute went into effect on June 2, "a spreadsheet of all state workers home addresses has twice been e-mailed to direct mail companies hired by OPEA."

Terrill is the House sponsor of SB 1753, which would exempt the birth dates of government employees from their personnel files.

Terrill recently said the bill likely won't be in its current form when it comes up for a vote in the House.

Watch The Oklahoman's strongly worded video editorial regarding Terrill and the OPEA.

Joey Senat, Ph.D.

Associate Professor

Oklahoma State University

AG recommends state employee identification numbers be kept confidential because of security concerns, leads to change in network security procedures

State employee identification numbers should be kept confidential because disclosure could expose the state's payroll system to hacking, the Attorney General's Office said this week.

But the assistant attorney general's letter detailing how hackers could use the information to enter the system led to the Office of State Finance changing the password system, The Oklahoman reported today.

Network security systems should rely on passwords and the number of times someone can try to log on before being locked out, said a data privacy expert who was the keynote speaker for FOI Oklahoma's third-annual Sunshine Week conference on Saturday.

The more unique identifiers, the better the system, said Richard J.H. Varn, chief information officer for the city of San Antonio and executive director of the Coalition for Sensible Public Records Access.

The Oklahoma Public Employees Association, which opposes release of employee birth dates, posted the assistant attorney general's letter to its Web site on Tuesday.

The OPEA quickly equated the employee identification numbers with birth dates, calling them private information.

The Oklahoman, however, pointed out that it had requested dates of birth and employee identification numbers of state employees as part of an ongoing look into the backgrounds of public workers. Public access to the employee identification numbers is the only way to track employees who have changed their names after marriage.

Another speaker for the Sunshine Week conference said Texas has provided him with the employee identification numbers for that state.

"I know of no government body anywhere that has denied access to unique identifiers because of this pathetic excuse. This is a very basic piece of information," said Ryan McNeill, computer-assisted reporting editor for the Dallas Morning News.

Strengthening Oklahoma's payroll system's security procedures would seem to negate the reason for denying access to the employee identification numbers. The attorney general's office should reconsider its recommendation accordingly.


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

State employees lobby legislators to exempt birth dates; OKC school district releases workers' DOBs

State employees will be at the Capitol on Tuesday lobbying legislators to close off public access to government workers' birth dates and protesting The Oklahoman's attempt to keep the information public, the Oklahoma Public Employees Association said Monday.

"We cannot let The Oklahoman win," OPEA Executive Director Sterling Zearley told members. "If they do, your birth date will be made public and your safety will be at risk."

On Saturday, OPEA's communications director likewise said public employees would be put at risk if the information is available to the public.

"It’s not just about identity theft," said Mark Beutler. "It’s about protecting our DHS case workers, our corrections officers, the Highway Patrol, employees of the OSBI and the Bureau of Narcotics and Dangerous Drugs, and every other state employee. Just because a person chooses to work for the state doesn't mean they must give up their right to safety."

State law, however, already already exempts public employees' Social Security numbers, home addresses and telephone numbers.

Last week, Oklahoma City Public Schools released birth dates for more than 5,000 district employees in response to The Oklahoman's open records request, the newspaper reported

Has the school district put those employees at more risk of having their identities stolen?

No, says Richard J.H. Varn, a data privacy expert and former Iowa legislator who will deliver the keynote at an open government conference in Oklahoma City on Saturday.

"Birth date alone is not going to get you an identity theft,” Varn told The Oklahoman.

Varn also reiterated that public records are not a source of information for identity thieves. Varn is executive director of the Coalition for Sensible Public Records Access and chief information officer for the city of San Antonio.

On Saturday, Varn will explain what sources we should be worried about and which solutions would be more effective than redacting information such as birth dates from public records.

FOI Oklahoma Inc. invites state legislators and OPEA members to attend the conference to hear Varn for themselves and to discuss the issue with him.

Details on the conference are available online: Oklahoma Sunshine ’10: Privacy, Politicians & the Public’s Need to Know


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

OKC discloses DOB of employee; newspaper learns he filed bankruptcy prior to city investigation

An Oklahoma City employee placed on administrative leave during an investigation into the misuse of grant money had filed personal bankruptcy a month before the city’s investigation began, The Oklahoman learned after city officials disclosed the employee's birth date late Tuesday.

The newspaper reported that city officials have not answered its request for all city employee birth dates. In an e-mail, a city attorney asked the newspaper for an explanation of the public interest in knowing that information.

City officials had refused since August to release the birth date of Ed Martin, the employee under investigation. A week ago, Assistant City Attorney Richard Smith said disclosure would be an unwarranted invasion of privacy.

Earlier that week, Oklahoma Attorney General Drew Edmondson said birth dates of public employees are presumed to be public records and should be released upon request.

"The only exception ... would be if the agency makes a specific finding that the release of the record would constitute a 'clearly unwarranted invasion of personal privacy,'" Edmondson said in a letter telling state agencies of his formal opinion on the subject.

Smith changed course on Tuesday, telling reporter Bryan Dean in an e-mail:

"Mr. Martin could claim that his date of birth is confidential, however, after much debate and consideration, the City has decided that Mr. Martin’s interest is outweighed by the public’s exercise of their political power.

"I trust that you and the Oklahoman will exercise the utmost care in deciding if you will publish this date of birth," Smith said.

The newspaper did not publish Martin's birth date.

Citing Edmondson's opinion, Smith also made a request of the newspaper.

"[T]o assist the City in the balancing test required by the revised opinion of the Attorney General, please advise me what you perceive to be the public’s interest in knowing each employee’s date of birth," he wrote.

For more on Edmondson's opinion, 2009 OK AG 33, read this blog's earlier posting.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

State employees group files criminal complaint alleging Open Meeting Act violation by state mental health board

A state employees group has filed a criminal complaint accusing the state mental health board of violating the Open Meeting Act when it approved a plan to lay off 100 employees, close centers and eliminate state's mental health beds for children.

Those actions were not listed on the board's Nov. 13 agenda.

Instead, the plan to cut the Department of Mental Health and Substance Abuse Services budget by $7.3 million was included in a monthly financial report.

The agenda item read, "Discussion and possible action regarding monthly financial report.”

Officials later told The Oklahoman that the board, which oversees the department, had voted only to accept the financial report and weren't taking action with that vote.

That tortured logic aside, the Tulsa World reported the board had voted separately on the reduction plan.

The Oklahoma Public Employees Association on Thursday asked the Oklahoma County district attorney's office to investigate whether the board violated the Open Meeting Act. (See coverage by The Oklahoman and Tulsa World.)

A violation of the Open Meeting Act is a misdemeanor punishable by a fine up to $500 and/or up to one year in the county jail for each count. (OKLA. STAT. tit. 25, § 314)

The state attorney general's office has warned public bodies not to use "report" on an agenda as a way to hide what they will be doing in a meeting.

For a detailed explanation of why the state mental health board seems to have violated the Open Meeting Act, please read an earlier posting on the FOI Oklahoma Inc. blog.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

State mental health board agenda doesn’t mention plan to lay off 100 employees, close centers and eliminate state’s mental health beds for children

Public bodies were cautioned in September not to use “cryptic” agenda language to hide what they will do in a meeting.

“Don’t try to hide items of business by putting it under ‘report,’” warned the head of the state Attorney General's General Counsel Section.

The Attorney General’s Office prefers for such reports “to have bulleted points for items under the report,” said Gay Tudor during an open government workshop for public officials in September.

Members of the board governing the state’s mental health department must have missed that workshop. So must have the staff for the Department of Mental Health and Substance Abuse Services.

An agenda item for the board’s meeting Friday read, "Discussion and possible action regarding monthly financial report.”

In that report – but not mentioned on the agenda – were proposals to cut the department’s budget by $7.3 million, The Oklahoman reported Saturday.

The plan includes closing a men’s treatment center in Tahlequah, merging facilities in Norman, and eliminating all 40 of the department’s mental health beds for children.

So how did department officials justify not listing those details on the meeting agenda?

"This is something simply that we were proposing to the board,” said Dewayne Moore, the department’s general counsel. "They understand the financial report, and that’s what they voted to accept.”

“What they voted on was, they accepted our financial report, which was indicating the budget cuts,” he told The Oklahoman.

The department’s chief operating officer reasoned that board members weren’t taking any action with the vote.

"They’re not doing the reduction, they’re telling us, ‘You’re on the right path,’” Durand Crosby told the newspaper.

However, the Tulsa World reported the board voted separately on the reduction plan.

The comments by Moore and Crosby are another example of Oklahoma officials torturing logic to explain why they weren’t upfront with the public in the first place.

According to the department’s Web site, “A governing board provides oversight regarding Department functions and activity related to the care, treatment, and recovery of persons suffering from mental illness and substance abuse.”

The board members “set broad departmental policy” and “ensure the quality of mental health and substance abuse programs across Oklahoma,” according to the Web site.

Wouldn’t the decision to close facilities, lay off employees and eliminate the state’s entire complement of mental health beds for children fit within that job description?

But even assuming that the board isn’t charged with making that decision, why would that preclude listing on the agenda the details of the proposed cuts?

The Oklahoma Public Employees Association will investigate whether to file a complaint alleging a violation of the state Open Meeting Act, the organization’s director of policy and research told The Oklahoman. (Read OPEA blog.)

The employees might have a worthwhile case.

Agendas should be worded in “plain language, directly stating the purpose of the meeting, in order to give the public actual notice,” the Oklahoma Court of Civil Appeals has said. (Haworth Bd. of Ed., 1981 OK CIV APP 56, ¶ 9)

The purpose of the Open Meeting Act “to encourage and facilitate an informed citizenry’s understanding of the governmental processes and governmental problems . . . is defeated if the required notice is deceptively worded or materially obscures the stated purpose of the meeting,” the Court of Civil Appeals said. (Haworth, ¶ 8)

“[A]ny act or omission which has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting” would be a “willful” violation of the Open Meeting Act. “This also includes agency action which exceeds the scope of action defined by the notice,” the court said. (Id. at ¶ 10)

The board’s Friday agenda certainly didn’t give the public actual notice.

The governor appoints the 11 members of the board. They are Chairman Joel Carson of Oklahoma City, Dr. Brent Bell of OKC; Bruce Fisher of OKC; Henry Haynes, Ed.D., of Vinita; Dr. Mary Anne McCaffree of OKC; Larry McCauley, Ed.D., of OKC; Robert McDonald of Norman; Dr. J. Andy Sullivan of OKC; Jack Turner of OKC; Ronna Vanderslice, Ed.D., of Weatherford; and Gail Wood of Stonewall.

As members of a public body entrusted with expending public funds and administering public property, they are expected to abide by the letter and spirit of the Open Meeting Act.

Because the Open Meeting Act was “enacted for the public’s benefit,” the Oklahoma Supreme Court said in 1981, the statute “is to be construed liberally in favor of the public.” (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7, 632 P.2d 408, 411)

Oklahoma attorneys general have said repeatedly, “The Open Meeting Act must be given a construction which will effectuate and not subvert the intention of the Legislature in facilitating an informed citizenry’s right to participate in government and understand why government acts affecting their daily lives are taken.” (See, e.g., 1980 OK AG 215, ¶12)

The principle is “very simple,” the state Court of Civil Appeals said in 1981. “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, ¶ 18)

In less than a year, we’ll have voted in a new governor. Between now and then, the gubernatorial candidates will have the opportunity to sign FOI Oklahoma Inc.’s Open Government Pledge and lay out their vision for a more open state government.

A commitment to abide by the letter and spirit of the Open Meeting Act should be an important criterion for the next governor’s appointees to public bodies.


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