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

Rep. Watson lives up to open government pledge by voting against bill exempting birth dates of public employees

Rep. Weldon Watson, R-Tulsa, was one of two House committee members to stand up for the public's right and need to know on Thursday.

Watson was joined by Rep. Jeffrey Hickman, R-Docoma, in voting against Senate Bill 1753, which would cut off public access to government employees' birth dates in personnel files.

Hickman pointed out that there is no documented case of anyone being harmed by the birth dates being accessible under the Open Records Act and that public employees are paid by taxpayers, The Oklahoman reported.

The bill passed the House Appropriations and Budget Committee by a 12-2 vote.

However, Rep. Randy Terrill, House author of the bill and a member of the committee, again said he plans to insert compromise language into the legislation, The Oklahoman reported.

What that compromise could be was not explained.

In March, Terrill said the bill won't be in its current form when it comes up for a vote by the full House. A date for that vote hasn't been set.

Last month, Terrill, a Republican from Moore, told The Oklahoman 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.

Besides Terrill, also voting for the bill on Thursday were:

• John Auffet, D-Stilwell
• John Carey, D-Durant
• Lee Denney, R-Cushing
• Dale DeWitt, R-Braman
• Joe Dorman, D-Rush Springs
• Larry Glenn, D-Miami
• Chuck Hoskin, D-Vinita
• Guy Liebmann, R-Oklahoma City
• Scott Martin, R-Norman
• Ken Miller, R-Edmond
• Danny Morgan, D-Prague

Watson is one of 12 House members who signed FOI Oklahoma Inc.'s Open Government Pledge while campaigning for office since 2008.

By signing the pledge, the House members 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.”

The other pledge signers in the House are:

• 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
• Wright, Harold, R-Weatherford

We hope they will follow Watson's example of living up to the pledge if SB 1753 comes before the full House for a vote.

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

5 gubernatorial candidates would veto bill exempting birth dates of public employees; Edmondson says he would sign legislation

Five of the six announced gubernatorial candidates said on Saturday that if they were governor, they would veto legislation exempting public employees birth dates from the state Open Records Act.

Only Attorney General Drew Edmondson, a Democratic candidate, said he would sign the bill.

The Legislature is entitled under the Open Records Act to decide which information in the personnel files of public employees would be considered "an unwarranted invasion of privacy," Edmondson told the audience at FOI Oklahoma's third-annual Sunshine Week conference.

Edmondson said that did not mean he would concede his veto power each time legislators write an exemption to the state Open Records Act.

State Sen. Randy Brogdon, a Republican gubernatorial candidate, said he would veto SB 1753, which would exempt public employee birth dates from personnel files.

When asked how he had voted when the bill came before the full Senate on Feb. 18, Brogdon said he didn't know.

Brogdon voted for the bill when it passed the Senate by 44-0 vote with no debate on the floor.

After being told how he voted, Brogdon said, "I am not in favor of hiding information so the final product as it comes out I will certainly vote accordingly."

Also saying they would veto the legislation were Lt. Gov. Jari Askins, a Democrat, and Republican candidates Congresswoman Mary Fallin, Robert Hubbard and Roger L. Jackson.
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The conference was the first time all six announced gubernatorial candidates had attended the same event to speak on a topic.

In the morning sessions, experts on privacy emphasized that birth dates in public records do not pose a threat of identity theft.

In December, Edmondson issued a formal written opinion stating that government employee birth dates are presumed open unless the public body can demonstrate that the employee’s privacy outweighs the public’s interest in disclosure.

In August, Edmondson said publicly that officials should err on the side of transparency regarding the release of dates of birth of employees. Edmondson said it’s difficult to contend that birth dates are private when they are found in a number of public records. He has since disclosed the birth dates of his own employees.

Edmondson has signed FOI Oklahoma Inc.'s Open Government Pledge promising "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.”

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

Tulsa World: Why birth dates of government employees are important to the public

A Tulsa World editorial today criticized the state Senate for moving last week to exempt public employee birth dates from the Open Records Act.

Like this blog did Friday, the editorial noted that senators passed the bill with no debate or questions.

The editorial also demonstrated how access to the information can help prevent the wrong people from being identified as criminals. Thirty-three state legislators' names match those of felons listed in the Oklahoma Department of Corrections database.

The editorial also pointed to the newspaper's investigation years ago that found more than 200 school district employees "were arrested and jailed in Tulsa County for various offenses, including felonies. Some of the employees had arrest records prior to their employment and others got into trouble with the law after they were employed."

As a result of the reporting, legislators "tightened up requirements on school districts to check out the public records of their employees."

"The investigation wouldn't have been possible — and the felons would still be in the school house — if birth dates were kept secret," the editorial explained.

"Some people want to keep their secrets secret," the newspaper concluded. "The public should know that the secret to transparent government is a dedication to open records that are accessible and usable."

At the March 13 FOI conference in Oklahoma City, an internationally recognized expert on data privacy will explain why exempting birth dates from public records won't lessen the threat of identity theft.

He also will explain how improved identity management technology and practices, along with public education on self-protection measures, would be more effective defenses.


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

State Senate unanimously exempts public employee birth dates with no debate; Privacy expert to speak about issue at Sunshine Week conference

At the urging of the state employees association, the Senate on Thursday approved a bill that would exempt public employees' birth dates from the Open Records Act.

The 44-0 vote came after no debate or questions.

But such an important issue deserves plenty of debate and questions as this legislation goes to the House for consideration.

Prior to the Senate vote, the Oklahoma Public Employees Association encouraged its members to ask their senators to vote for SB 1753. In an e-mail, the OPEA said:

State employees’ duties often bring them in contact with the public in safety, protection of the most vulnerable and regulatory functions. Child welfare workers, corrections and probation officers, or benefit workers can be stalked by criminals or disgruntled members of the public with whom they have come in contact through the performance of their job duties. Employees’ birthdates can also be used by identity thieves to access bank accounts and credit of public workers.

The OPEA touts the Senate vote as one of its "first wins of the legislative session."

“In this day of identity theft and fraud, we need to make sure these private records are kept confidential," said OPEA Executive Director Sterling Zearley. "We now look forward to working with the House of Representatives to secure passage of this very important piece of legislation.”

But an internationally recognized expert on data privacy disagrees with Zearley.

Richard J. H. Varn says identity theft is a real problem but public records aren't the source of that problem. Exempting the information, however, does create a privacy problem.

When public identifiers are not made public, it is nearly impossible to distinguish one person from another. It leads to more false positives and false negatives, Varn told the National Freedom of Information Coalition conference this past summer.

For example, when The Oklahoman compared January’s state payroll data to the state sex offender registry, the newspaper found 778 state employees who share 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.

State law already exempts public employees' Social Security numbers, home addresses and telephone numbers. SB 1753 would make it virtually impossible to determine if those employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions.

Senate President Pro Tempore Glenn Coffee told The Oklahoman he has some reservation about the bill even though he voted for it.

"Further discussion is necessary before a bill like that would become law,” the Oklahoma City Republican said.

That discussion should include experts such as Varn who can educate legislators on the realities of identity crimes.

As keynote speaker for the March 13 FOI conference in Oklahoma City, 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.

Varn is the chief information officer for the city of San Antonio and director of The Coalition for Sensible Public Records Access. He was the first Iowa legislator to install and use a computer in the legislative chambers. He later created and served as director of that state's first Information Technology Department. Varn, who also has a law degree, is an internationally recognized expert and leader in information technology, privacy, identity security, public policy, and digital government.

Just the sort of person our legislators should speak with before turning SB 1753 into law.

For more discussion and information on the bill and related issues:

• How many state employees are sex offenders?, DataWatch blog by Paul Monies of The Oklahoman.
• Senate OKs birthdate-secrecy bill, by Barbara Hoberock of The Tulsa World.
• Oklahoma Senate bill keeps birth dates private for public employees, by Julie Bisbee of The Oklahoman.
  
• State Senate bill would exempt government employees' birth dates from Open Records Act, make identifying public employees virtually impossible, by FOI Oklahoma Blog.
• Understanding the Access Debate, a series of white papers by The Coalition for Sensible Public Records Access.
  

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

Senate committee OKs bills to exempt public employee birth dates, film proposals, stop court clerks from charging more than 25 cents per copy

The state Senate Judiciary Committee on Tuesday unanimously approved a bill exempting government employees' dates of birth from the Open Records Act, The Oklahoman reported today.

However, the bill's title -- a requirement to become law -- was removed after some committee members expressed concerns about some of the legislation's language, the newspaper said.

Senate Bill 1753 next goes to the full Senate for consideration along with two other records-related bills approved by the committee on Tuesday.

SB 1351, filed by Sen. David Myers, R-Ponca City, would keep confidential certain film proposals to the state Film and Music Office.

SB 1318, filed by Sen. Patrick Anderson, R-Enid, would limit court clerks to 25 cent per page for documents requested under the Open Records Act. Anderson is the Judiciary Committee chairman.

SB 1753 was filed by Sen. Debbe Leftwich, D-Oklahoma City.

She told The Oklahoman that the bill wasn't requested by local officials but was based on her reaction to a state attorney general opinion that she had requested on behalf of Oklahoma City officials.

In that opinion, Attorney General Drew Edmondson said the birth dates of public employees are presumed open and may be withheld only if officials can demonstrate on a case-by-case basis that disclosure would constitute a clearly unwarranted invasion of privacy that outweighs the public interest. (2009 OK AG 33)

Given that public employees' Social Security numbers, home addresses and telephone numbers are already exempted, SB 1753 would make it virtually impossible to determine if those employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions.

Background on the bill and the issues surrounding public access to the birth dates of government employees can be found in this earlier posting on this blog.


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