FOI Oklahoma asks state Supreme Courts to drop proposed rules that would limit information in court records

Oklahomans have until Friday to tell the state Supreme Court what they think of proposed rules that would ban personal information from court records.

Here is FOI Oklahoma's letter to the court:

Freedom of Information Oklahoma Inc. asks the Oklahoma Supreme Court to reconsider its proposed rules that would remove personal information from criminal and civil court records.

FOI Oklahoma is a statewide organization founded in 1990 to educate the public on rights of the First Amendment and to promote openness in government. It has a broad based membership including journalists, attorneys, librarians and others interested in preserving the free flow of information.

The organization believes the court’s proposed rules are over broad and would negatively impact basic information that every citizen of the state should be able to access easily.

Especially chilling is the proposal to redact personal identification information. The public would lose its ability to track defendants in criminal and civil cases.

Although the court has said it does not want to limit access to court documents; that appears to be exactly what the proposed rules would do.

It is in the best interest of the public to have as much information available as possible. Erasing this information as proposed by the court would be a step back, not a step forward.

FOI Oklahoma endorses former Attorney General Drew Edmondson’s statement opposing any rule or legislation that limits the public’s right to know. Edmondson said that as a former prosecutor, having access to identification such as dates of birth on criminal court records is important.

FOI Oklahoma applauds the court’s work in making court records available electronically.
However, the organization feels removing personal identifiers from these records negates any positive aspect of electronic records.

FOI Oklahoma hopes the court will recognize the public’s right to full access of this information far outweighs all other concerns.

Sincerely,

Bryan Dean, President, FOI Oklahoma
Staff Writer, The Oklahoman

Reactions to state Supreme Court ruling blocking public access to government employees' identification numbers and birth dates in their personnel files

Reactions to the state Supreme Court's ruling that public access to government employees' birth dates and identification numbers would serve no valid public interest but would constitute an unwarranted invasion of privacy.

• Schaad Titus, an attorney for the Tulsa World:
  

  We are very disappointed, as we feel date-of-birth information is a fundamental tool to the media to distinguish one public agency employee from any other person. We respectfully believe the court misapplied the balancing standard and the extreme public interest the press has in accurately distinguishing the public agency employee from any other person such as Jim Smith who committed a crime.

• Joe Worley, Tulsa World executive editor, said the ruling is disappointing because it "makes new law."
  

  With date-of-birth information, the Tulsa World is able to confirm or rule out the identity of people accused of crimes. Without that information about public employees, Oklahomans don't know who is working in the government that they are paying for.
  
  The state of Oklahoma is selling date-of-birth information about public employees but won't release that same information to the public.

• Kelly Dyer Fry, editor of The Oklahoman and vice president of news for OPUBCO Communications Group:
  

  It's not just a question of using dates of birth for identification, but also for misidentification. If average citizens run their names through the sex offender registry, they might be surprised to find someone on the list with the same name. Birth dates can quickly sort out who's who. I respectfully disagree with the court's decision.

• M. Scott Carter, president, Oklahoma Professional Chapter, Society of Professional Journalists:
  

  We are disappointed by this ruling. This ruling suggests that state employees have a greater right to privacy than the average citizen.
  
  We feel this ruling is a setback for transparency efforts within Oklahoma government. On too many occasions, the spirit and strength of the Oklahoma Open Meeting and Open Record Act have been chipped away over concerns about an invasion of privacy.
  
  In their ruling a majority of the court said they “could not fathom an instance where this information could be used by the public to ensure the government is properly performing its function.”
  
  We disagree.
  
  Oklahomans need transparency in their government. Further, being able to use a birth date to correctly identify a state worker – who could be making or enforcing policy that would have a profound impact on residents – is an absolute necessity for both the public and media professionals.
  
  In the future, we hope the Justices of the Oklahoma Supreme Court will consider the vital role the news media plays in ensuring Oklahoma government remains transparent and accessible to the general public.

• Mark Thomas, executive vice president of the Oklahoma Press Association, said the Supreme Court expanded privacy protections for state employees at the expense of transparency in government.
  

  It's ironic that private citizens are required to give our information to the government to vote or drive, but the same information about state employees is off limits. Now government will have everything about us, but we'll have nothing about them.

• Sterling Zearley, executive director of the Oklahoma Public Employees Association:
  

  This is a great victory for OPEA and state employees. The Association followed through on this critical issue all the way to the Supreme Court because we believed state employees, who dedicate their lives to public service, should not have their private information released to the press or other individuals.
  
  OPEA was concerned that an employee’s birth date could be the missing puzzle piece in both financial and health care identity fraud. In addition, the safety of corrections officers, child welfare workers, and other employees who work with the public could be put in jeopardy.

• Randy Terrill, Republican state representative from Moore:
  

  I believe in openness and transparency in government and that any data related to the job performance of an employee should be public record. However, birthdates and personal identification numbers in no way relate to an employee’s performance in an official capacity. The blanket release of personal data simply does not satisfy the test set forth by the court today.
  
  We did try to work with the Oklahoma Press Association and other media entities to craft a reasonable compromise to provide access to state employees’ information under certain circumstances when reasonable suspicion existed, but those efforts were rebuffed. Today, the 'all or nothing' approach they pursued has left them with nothing. It is my hope that they will be less rigid and dogmatic in the future when someone makes a good-faith, reasonable effort to negotiate a compromise.

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.

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

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

Bill would hide birth dates of public employees while state sells same information for everyone else

While HB 3382 would conceal public employees' birth dates in their personnel records, the state Department of Public Safety continues to sell the birth dates for millions of regular Oklahomans from other records, the Tulsa World notes today.

The House vote on HB 3382 was delayed from Friday to Monday.

The bill would also would allow DPS to keep OHP dash cam recordings secret when they are most important and to charge $50 for copies of the recordings and for photographs, the FOI Oklahoma Blog pointed out last week.

The language restricting access to the birth dates of public employees was added to HB 3382 last week in the the Senate General Conference Committee on Appropriations

Rep. Randy Terrill's original bill on dates of birth had died in the House last month after Rep. Lucky Lamons, D-Tulsa, added an amendment requiring the state Legislature to follow the Open Records Act. Representatives didn't want to vote on that issue.

Legislators have long used conference committee reports to make last-minute changes to bills that then can be quickly ushered onto the floor of the House and Senate for a final vote, Sean Murphy of the AP notes in an article published statewide today.

Some lawmakers say it allows for last-minute shenanigans as members or lobbyists bypass the traditional vetting process and sneak controversial proposals into the statutes in the waning days of the legislative session, Murphy wrote.

Sound familiar?

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Senate revives bill closing public access to gov't workers' DOBs, employee ID. numbers; Sets $50 fee for copies of DPS recordings, photos

Legislative slight of hand has resurrected an attempt to restrict access to the birth dates of Oklahoma's government employees and to their employee identification numbers.

The language was added to a bill originally intended to open access to the dash cam videos of the Oklahoma Highway Patrol.

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.

But Mark Thomas of the Oklahoma Press Association warned that the language on birth dates in personnel files might be added to another bill.

Sure enough, that's what happened. The restriction was added to HB 3382.

On Wednesday, the Senate General Conference Committee on Appropriations approved HB 3382, which heads to the House, the Tulsa World reported today.

HB 3382 was originally intended to make public once again recordings by the Oklahoma Highway Patrol.

The state Department of Public Safety’s audio and video recordings were public records until legislators exempted them in May 2005. (OKLA. STAT. tit. 51, § 24A.3(1)(h)(3))

Previous postings on this blog have further explained the history of that legislation: Oklahoma Highway Patrol dash cam videos should be public; OHP releases dashboard camera video; Are Oklahoma Highway Patrol dashboard camera videos a public record?

Now, the public is faced with regaining access to OHP videos or losing access to needed information about its employees.

Thomas told the Tulsa World that the OPA is recommending that HB 3382 be killed.

"The public will just have to live without having access to the dash cam recordings of their state troopers," he said.

Given HB 3382's exemptions and other flaws, that seems best.

The bill would keep recordings closed during "an ongoing criminal or internal investigation to which the video or audio recording is relevant."

It also would require DPS 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.

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

But HB 3382, revised by Rep. Randy Terrill, R-Moore, and Sen. Anthony Sykes, R-Moore, would make it virtually impossible to determine if government employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions.

Eliminating access to the employee identification numbers would make it virtually impossible to track workers across government jobs.

The Oklahoma Public Employees Association and Oklahoma Troopers Association will get want they want either way: No public access to the video of their actions on patrol, or no way for the public to know about its own employees.

The public, on the other hand, will be the big loser this legislative session.

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

Judge grants OPEA temporary restraining order, allows FOI OK, The Oklahoman, others to join in court battle over state workers' birth dates

Oklahoma County Judge Bryan Dixon this morning granted a temporary restraining order stopping the release of state workers' birth dates to The Oklahoman.

The judge also 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 seeking the order against the state Office of Personnel Management.

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

The Oklahoman is expected to file an answer and a request for a summary judgment next week.

Coverage of hearing: Release of Oklahoma public employee birth dates temporarily halted by judge, By John Estus, The Oklahoman, 4.9.10.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

The Oklahoman seeks to intervene in OPEA lawsuit aimed at stopping state from providing newspaper with information on state employees

The Oklahoman is seeking to intervene in a state employee association's lawsuit to block the state government from providing the newspaper with the birth dates and other basic personnel information on state workers.

The Oklahoma Public Employees Association requested the injunction on Monday.

A hearing is scheduled for Wednesday before Judge Noma D. Gurich. (CJ-2010-2623, Oklahoma Public Employees Association v. Oklahoma Office of Personnel Management)

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.

For more background on the issue: OPEA asks judge to stop state from providing newspaper with information on state employees

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

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

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

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