Terrill bill exempts public employee ID. numbers, birth dates from Open Records Act, restricts access to OHP dash cam recordings when most needed, allows DPS to charge more for records

Government employees' identification numbers and birth dates would be exempted from the state Open Records Act, under a bill filed by Rep. Randy Terrill, R-Moore.

Terrill failed to close off the information last legislative session.

His legislation this year, House Bill 2097, includes an emergency clause, meaning that it would take effect immediately after being signed by the governor. Getting the bill signed by Gov. Mary Fallin, however, could be another hurdle for Terrill.

As a gubernatorial candidate last spring, Fallin said she would veto legislation exempting state and local government employees' birth dates from personnel files.

The Republican also signed FOI Oklahoma's Open Government Pledge in which she promised "to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Exempting government employees' birth dates and identification numbers would severely hamper the ability of Oklahomans to know and be fully informed about their government. The public would find it virtually impossible to determine if government employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions. The public also would find it virtually impossible to track workers across government jobs.

Terrill's attempt to exempt the information last session became intertwined with legislation originally intended to restore public access to the dash cam videos of Oklahoma Highway Patrol troopers. So it has again.

HB 2097 also keeps OHP recordings closed during "an ongoing criminal or internal investigation to which the video or audio recording is relevant."

It also would require the Department of Public Safety to censor "all content which depicts, expressly or implicitly, the death of any person."

The bill also would allow DPS to charge $1 for the first page of a record and 25 cents for subsequent pages of a report. It sets the fee for copies of DPS videos and still images at $50.

In addition to Terrill's bill, access to the birth dates and employee identification numbers is being fought over in the courts.

In December 2009, then-Attorney General Drew Edmondson issued a formal opinion that government employees' birth dates in their personnel files are presumed open. Officials may refuse to release the information only if they determine that disclosing the birth date would constitute an “unwarranted invasion of privacy” that outweighs the public interest in disclosure, Edmondson said. (2009 OK AG 33, ¶ 11)

Edmondson said public bodies must decide each case individually and may not enact policies blocking access to all employee dates of birth.

Last spring, the Oklahoma Public Employees Association filed a lawsuit seeking to stop the state Office of Personnel Management from releasing state workers' birth dates to The Oklahoman.

Oklahoma County Judge Bryan C. Dixon allowed The Oklahoman to intervene as a defendant and FOI Oklahoma, Tulsa World, KWTV, KOTV, the Oklahoma Press Association and the Reporters Committee for Freedom of the Press to file briefs in support of the public's right to the information.

Dixon also granted requests by the Oklahoma State Troopers Association and the Oklahoma Department of Public Safety to join with the Oklahoma Public Employees Association.

In late September, Dixon agreed with the balancing approach set forth in Edmondson’s opinion. However, Dixon said, in effect, that state employees were not entitled to individually challenge the disclosure of their birth dates by their state agencies. (Okla. Pub. Employees Ass’n v. Oklahoma Office of Pers. Mgmt., No. CJ-2010-2623 (Okla. Co. Dist. Ct.) (Sept. 21, 2010))

“The employing agencies shall not give notice or conduct a hearing as to individual employees on the issue of whether this is an unwarranted invasion of personal privacy,” Dixon said.

He also ruled that employee identification numbers were not subject to disclosure.

In October, the employees association and the newspapers appealed Dixon's ruling to the state Supreme Court.


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

State Reps. Terrill, Christian say House should comply with Open Records Act as part of legislative reform

Two state representatives being investigated for possible corruption say the House should be subject to the state Open Records Act as part of reforming the legislative process, according to a news release issued Wednesday.

"For the public to have confidence in our body, it is vital that House administration be transparent," said Rep. Randy Terrill, R- Moore. "Accordingly, the Open Records Act should apply to the House to the greatest extent possible, just like it applies to every other branch of government."

Terrill and fellow Republican Rep. Mike Christian of Oklahoma City added this caveat: "While maintaining respect for the privacy of constituent communications."

The press release doesn't explain which information they would exempt from "constituent communications."

Oklahoma County District Attorney David Prater is investigating whether Terrill conspired with Sen. Debbe Leftwich to give up her Oklahoma City seat so Christian could run for it and Leftwich would get a high-paying job at the state Medical Examiner's Office in exchange.

Reporters have been denied access to notes, e-mails and other information that might shed light on who in the last days of the session added legislative language creating that high-paying job.

Terrill spent last legislative session trying to revoke public access to government workers' birth dates in personnel files and to autopsy reports.

His political maneuvering included adding language to a conference committee report and a last-minute change to legislation.

But Terrill and Christian said Wednesday they want to do away with conference committees and require "all bills or resolutions headed to conference be returned to their standing committee of origin."

"When sitting as a conference committee, those standing committees would continue to be subject to public notice, meeting, staffing and voting requirements," said Terrill.

Christian added:

There is no legitimate justification for the specially appointed conference committee. The current practice invites gamesmanship because it takes the bill away from those with subject matter expertise and gives it to a group whose membership is determined solely by their allegiance to the bill’s author or House leadership.

House Speaker-Designate Kris Steele of Shawnee has already announced changes to the House conference committee process that he said would "make the procedure more transparent and open to the public."

Included is a "hard 24-hour rule that will require a House conference committee report to be filed and posted online for a full day before it can be considered on the House floor." Steele said that means even during the session's last two days, when the rule has been waived.

Touting transparency in government seems to have become fashionable among legislators.

Last week, for example, a news release by Rep. Ken Miller on the House website told how at a recent national legislative conference in California he had "shared some of Oklahoma’s successes with making state government more transparent, open and accountable to the taxpayers."

"Taxpayers not only deserve to know where their money is being spent, they need to know so they can demand greater efficiency" said Miller, an Edmond Republican. "Openness and transparency makes government accountable to the people who fund its operations and that translates into more responsible spending."

Miller, his party's candidate for state treasurer, is chairman of the House Appropriations and Budget Committee.

Democrats and Republicans complained about being left out of the budget planning last session. Secret budget negotiations aren't transparent.

Miller also voted to cut off access to public employees' DOBs when Senate Bill 1753 passed the House Appropriations and Budget Committee.

So I am skeptical when legislators such as Miller, Christian and Terrill talk of making Oklahoma government more open to the public.

But who am I to complain if they've seen the light and want the sun to shine on their legislative practices.

We'll just have to see if they can walk the walk when the time comes.

Joey Senat, Ph.D.

Associate Professor

OSU School of Media and Strategic Communication

Terrill sneaks in "dangerous and wrong" language that would hamper public access to autopsy records

Legislators Thursday approved a Senate bill intended to improve the state medical examiner's office but that also would restrict public access to autopsy reports because of last-minute language added by Rep. Randy Terrill, reported The Oklahoman this morning.

A House bill that would have restricted access to portions of homicide autopsy reports was withdrawn last week because of opposition it faced on the House floor.

But legislators approved Senate Bill 738, which says the law shall not be construed to "require copies of incomplete or pending reports or any other documents covered by the work-product doctrine to be furnished.”

Rep. Samson Buck, D-Ardmore, said he was concerned the language restricted the public's right to autopsy reports, the newspaper reported.

Buck also was concerned the 49-page bill was presented the night before the last day of the legislative session with language most members had not previously seen, the newspaper reported.

Rep. Richard Morrissette, D-Oklahoma City, accused Terrill of "sneaking in language” that "is dangerous and wrong,” reported The Oklahoman.

Terrill, the House author of the bill, said the language has nothing to do with the state's Open Records Act.

"This bill simply says that if you have an incomplete or partial file, meaning that you have a pathologist or a medical examiner who has not made a determination as to cause and manner of death that that information is closed,” said the Republican from Moore. "But once there has been a determination as to the cause and manner of death it's open.”

The bill passed the Senate 45 - 0 Thursday and the House 58 - 40 that night. It goes next to Gov. Brad Henry for approval.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Rep. Randy Terrill tries again to stop public access to government workers' birth dates, employee identification numbers

Rep. Randy Terrill on Tuesday added language preventing public access to government workers' birth dates and employee identification numbers to the conference committee version of the Omnibus Corrections bill.

Under the Moore Republican's revised HB 3379, the state Open Records Act would be amended to include the following provisions:

D. The Department of Corrections shall keep confidential the home address, telephone numbers and, social security numbers, employee identification number and birth date of any person employed or formerly employed by the public body.

E. The provisions of subsection D of this section shall be applicable to all public bodies and to any request made pursuant to the provisions of the Oklahoma Open Records Act prior to the effective date of this act for which a public body has not provided a response as of the effective date of this act.

Media attorney Michael Minnis notes that paragraph E might violate the state Constitution's prohibition on ex post facto laws because it would apply to existing records requests.

The new language also might violate the state Constitution's ban on bills containing multiple subjects, Minnis said.

Terrill also added an emergency clause, meaning that the bill would take effect immediately after being signed by the governor.

However, the emergency clause requires a two-thirds vote of approval by the Legislature.

Last week, Terrill's restrictions on public access to the birth dates and employee identification numbers found in government workers' personnel files were added to a bill originally intended to open access to the dash cam videos of the Oklahoma Highway Patrol.

Approved by the Senate General Conference Committee on Appropriations, HB 3382 was sent to the House for consideration. But the bill has failed to make it to the floor.

The original bill on dates of birth had failed to make it out of the House by a deadline last month after Rep. Lucky Lamons, D-Tulsa, added an amendment requiring the state Legislature to follow the Open Records Act. Fellow lawmakers didn't want to vote on that issue.

If Terrill's latest attempt to circumvent the traditional legislative vetting process succeeds, the public would find it virtually impossible to determine if government employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions. The public also would find it virtually impossible to track workers across government jobs.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Lamons amendment would undo Terrill 'compromise' on birth date bill, subject Legislature to Open Records Act

A bill to close public access to the birth dates of government workers would become a bill requiring the state Legislature to follow the Open Records Act, under an amendment filed Wednesday morning by Rep. Lucky Lamons.

The Tulsa Democrat's amendment to SB 1753 might keep the DOB bill from coming to a vote of the full House because representatives likely don't want to decide if they should be subject to the records statute, said Mark Thomas of the Oklahoma Press Association.

Thomas warned though that Rep. Randy Terrill and the Oklahoma Public Employees Association might try to close access to the personnel information by inserting their language into another bill.

Late Monday, Terrill filed a "compromise" amendment that would end public access to the birth dates found in the personnel files of government employees. (Read blog posting on Terrill's amendment.)

House members were expected to vote either today or Thursday on that amendment.

But Lamons filed an amendment that would strip Terrill's proposed language and instead require legislators to abide by the state Open Records Act.

Lamons is one of 12 House members who signed FOI Oklahoma's Open Government Pledge.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

House could vote today on Terrill 'compromise' ending public access to government employees' birth dates

Rep. Randy Terrill's "compromise" would end public access to the birth dates of government employees and "be the end of the presumption that records are open unless closed," the Oklahoma Press Association executive vice president warns.

"We need to ratchet up the calls (to state legislators) or this terrible process – even though limited to DOB now – will creep into the open records act," says Mark Thomas. "They will be open if you can prove to the government you need them bad enough."

Terrill's floor amendment, filed late Monday, to SB 1753 could be voted on by the full House today or Thursday.

Paul Monies of The Oklahoman says the new language "makes a bad bill worse and turns the whole Oklahoma Open Records Act on its head."

Thomas is calling on state newspapers and open government advocates to tell House members to vote against the amended bill.

Thomas explains the procedure created by Terrill's amendment:

1. You will have to submit the employee’s DOB – obtained from another source – and the public body will only verify the accuracy of what you have submitted. You won’t actually get the DOB as a record – this law still closes all public employee DOB’s.


2. You must give a public body a written request for a record.


3. Your written request must ask about a specific person – not more than one person per request.


4. Your written request must provide a REASON why you want the public record.


5. The public body will only respond if the person you are asking about works there on the day of the request – not if they worked there in the past.


6. The public body will have a “reasonable period of time” to review your request.


7. The public body will tell you if they have the record or if they don’t have it – but not provide the DOB to you. The public body will just give you a written confirmation that what you submitted to them is correct.


8. But before the public body replies to you, they must notify the employee of your request within a “reasonable period of time.” The public body must tell the employee WHO is asking for the record, and WHY you say you want it.
   

(The amendment's language is at the end of this blog.)

"They will say it is 'only for DOB' but you know it will spread to other records requests when this gets in the Open Records Act," Thomas says. "You know how terrible this process will be – but DOES YOUR LEGISLATOR KNOW how devastating this will be on requests for records?"

Monies says on his Data Watch Blog the bill would "grant public employees greater privacy protections than registered voters, licensed drivers and people who buy prescription drugs in Oklahoma."

Twelve members of the House signed FOI Oklahoma's Open Government Pledge while campaigning.

They promised voters that if elected, they would "support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Most of those signers seemed to have forgotten that promise this legislative session. It's time for them to remember it.

The state representatives who signed the pledge:

• Dank, David, R-Oklahoma City
• Collins, Wallace, D-Norman
• Lamons, Lucky, D-Tulsa
• McDaniel, Jeannie, D-Tulsa
• McDaniel, Randy, R-Edmond
• Murphey, Jason W., R-Guthrie
• Nations, Bill, D-Norman
• Russ, Todd, R-Cordell
• Sanders, Mike, R-Kingfisher
• Scott, Seneca, D-Tulsa
• Watson, Weldon, , R-Tulsa,
• Wright, Harold, R-Weatherford
  

Here is the relevant portion of Terrill's amendment:

SECTION 1. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 24A.7-1 of Title 51, unless there is created a duplication in numbering, reads as follows:

A. No public body shall release to any person or entity the exact date of birth for any employee of the public body.

B. For purposes of the Oklahoma Open Records Act, an employee’s date of birth shall not be subject to disclosure by the public body except for the procedures prescribed by this section for responding to requests to confirm or deny a date of birth with respect to a person identified in a request for verification.

C. A person or entity may request a verification from a public body that a birth date for a specifically identified person whom the requestor reasonably believes to be employed by the public body as of the date of the request is the same as the birth date for such employee as reflected by the employment records of the public body.

D. The requestor shall submit a written request for verification of date of birth to the public body which request shall contain:

1. The complete name of the person whom the requestor reasonably believes to be an employee of the public body as reflected in the information or document relied upon by the person or entity making the verification request;

2. The particularized and specific reason that the requestor is asking for verification of the employee date of birth for each employee included in a verification request; and

3. Any other identifying information related to the information or document in the possession of the requestor that would allow the public body to determine whether or not the person identified in the request is an employee of the public body.

E. For purposes of verification requests submitted by any person or entity and for purposes of responses to such requests by a public body, a person’s status as an employee shall be determined as of the date that the verification request is submitted to the public body.

F. The public body shall have a reasonable period of time from the receipt of a verification request within which to review the request and any document or other information identified in the request to ascertain whether the person named in the verification request is an employee of the public body.

G. If the public body determines that the person identified in the verification request is or may be an employee of the public body, the public body shall respond in writing to the person or entity making the verification request that the date of birth of the employee is the same as the date of birth provided by the requestor with respect to the person identified in the verification request.

H. If the public body determines that the person identified in the verification request is not an employee of the public body, the public body shall respond in writing to the person or entity making the verification request that the date of birth provided by the requestor with respect to the person identified in the verification request does not match the date of birth of any employee of the public body.

I. Within a reasonable period of time after a public body receives a verification request pursuant to this section and prior to the date as of which the public body provides a written response confirming a birth date of one or more of its employees, the public body shall provide written notice to any employee whose date of birth has been the subject of a verification request by a requesting entity of the identity of the requesting entity and the reason provided by the requesting entity for the verification request.

J. Prior to making the written verification to a requesting entity with respect to an employee date of birth, the public body shall notify any employee whose date of birth will be confirmed to a requesting entity that the public body will be providing a confirmation of the date of birth to a requesting entity.

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

State makes millions by selling personal information, but state legislators want DOBs of public employees kept secret

The state of Oklahoma makes tens of millions of dollars selling personal information about its residents, The Oklahoman and Tulsa World reported Sunday.

In a joint investigation, the newspapers reported that for example, the state made at least $65 million in the past five years from the sale of millions of motor vehicle records that include birth dates and other personal information of all state drivers.

The Oklahoman's editor pointed out in strongly worded editorial that while "the state is reaping millions of dollars from the sale of this information," Rep. Randy Terrill and Sen. Debbe Leftwich are pushing to exempt the birth dates of public employees from government personnel files.

Editor Ed Kelley also noted that Terrill used a list of registered voters for his 2004 campaign. Voter registration records include birth dates.

Keeping birth dates secret won't help protect workers' identities or safety because the information already is available elsewhere, the keynote speaker for FOI Oklahoma Inc.'s recent Sunshine Week conference told the newspapers.

"What I would tell them is stop trying to shut the barn door after the horses are gone," 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. "It's a lack of understanding by policy makers to what an effective countermeasure is to identity theft."

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

House sponsor says DOB bill likely will change before vote

State Rep. Randy Terrill says a bill exempting the birth dates of public employees from personnel files likely won't be in its current form when it comes up for a vote in the House, The Oklahoman reports today.

Terrill, a Republican from Moore, told the newspaper he wants to come up with a process that outlines how and under what circumstances birth dates of public workers should be released. He said he wants the process to protect workers’ privacy while maintaining the public’s right to know about who is working for their government.

That doesn't sound any more promising for the public's right to know than the current process of balancing the public interest in disclosure and determining whether disclosure would constitute an "unwarranted invasion" of each employee's privacy.

Terrill seems to still be laboring under the impression that releasing the birth date is an invasion of privacy. The information is found in other public records, including voter registration records.

If releasing a birth date is an unwarranted invasion of privacy, why didn't legislators exempt DOBs when they exempted employees' home telephone numbers, home addresses and Social Security numbers in past years?

What about employees' names? Their salaries? Will those be considered unwarranted invasions of privacy?

A week ago, five of the six announced gubernatorial candidates said if they were governor, they would veto SB 1753.

Legislators would better serve public employees if they put an end to this bill and focused instead on solving real problems such as layoffs and unpaid furloughs.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Senate leader now says he'd vote against birth date bill; Dueling op-ed columns in The Oklahoman debate issue

Senate President Pro Tempore Glenn Coffee now says he will vote against a bill exempting public employee birth dates if the legislation returns to the Senate, The Oklahoman reported this morning.

The Oklahoma City Republican had his chance to vote against SB 1753 last week when it passed the Senate by a 44-0 vote with no discussion or debate on the floor. Instead, he voted for it, the newspaper reported.

Coffee told The Oklahoman he did not support the bill approved by the Senate.

"Upon further review, I think I would have changed my vote,” Coffee said.

Would have? Wish he had done it the first time. But better late than never.

Unless the House changes the legislation, it won't be returning to the Senate, reporters Julie Bisbee and Michael McNutt noted.

However, the bill doesn't have a title, which it must have to become law. A title can be added any time in the legislative process, the newspaper pointed out.

So to become law, the bill would be headed back to the Senate.

Before that, the bill must go through a House committee to be heard by the full House. Along the way, we expect the 12 House members who've signed FOI Oklahoma's Open Government Pledge to live up to that promise to support the public's right to know. (See the 2008 and 2009 signers.)

The bill's House author, Rep. Randy Terrill, told the newspaper he wants to work on the wording of the measure to come up with a "clearly defined, reasonable criteria that strikes the balance between the public’s right to know and the individual’s right of privacy.”

The Moore Republican indicated that balance might not be achieved this legislative session.

In the meantime, perhaps legislators will speak to data privacy experts such as Richard J.H. Varn, who will be addressing the March 13 conference on open government issues.

The former Iowa legislator will explain how improved identity management technology and practices, along with public education on self-protection measures, would be more effective defenses against identity theft.

The Oklahoman today published opposing viewpoints on the bill by Mark Thomas of the Oklahoma Press Association and Sterling Zearley of the Oklahoma Public Employees Association. Both deserve a close reading with an open mind.

One point, however, deserves a comment here. Zearley said the public should be entitled to know the birth dates of The Oklahoman's reporters because his subscription helps pay their salaries. Zearley is equating his subscription fee with taxes.

But paying for a subscription to The Oklahoman is a voluntary choice. Paying local and state taxes isn't one.

Birth dates. Identity theft. The public's need to know. This is a complicated issue that requires more than simplistic, bumper sticker solutions. It requires an informed debate.

FOI Oklahoma Inc. hopes to add to that debate at its conference March 13 in Oklahoma City. The deadline for early registration is March 10. If you're interested in this issue, please register and attend.


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