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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.
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.
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
A Tulsa County special district judge Thursday sealed the divorce file of Tulsa mayoral candidate Dewey Bartlett Jr. at his request, the Tulsa World reports today.
Bartlett’s request came a day or so after FOI Oklahoma Inc. received his signed Open Government Pledge “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.”
Note to Mr. Bartlett: Sealing court records isn’t supporting the public’s right to know.
Bartlett cited fears of identity theft as the reason for closing the case, which was filed in 2002.
Michael Bates had begun posting a small portion of the case file on his conservative blog Batesline earlier in the week. Bates told the newspaper he had redacted all the sensitive information before posting them.
Regardless, Bartlett’s argument for closure is a specious one.
As The Oklahoman reported earlier in the week during its battle with Oklahoma City officials over the release of an employee’s birth date, open government advocates nationally say the fear that releasing private information from public records will cause identity theft is unjustified. (Read related blog.)
“Those fears aren’t backed up with statistics or even anecdotal evidence showing public records are a source for identity thieves,” reporter Bryan Dean summarized.
Public records were not listed as a significant source of identity theft by the 2006 Identity Fraud Survey Report co-released by the Better Business Bureau. It said 30 percent of identity theft came from stolen wallets or purses, 15 percent from close associates such as friends and family, 9 percent from stolen mail and garbage, and 9 percent from computer hacking.
The Tulsa World reported in early August 2008 on the growing problem of Oklahoma judges closing public access to court files, estimating that judges had sealed at least one record in more than 2,300 cases statewide.
Reporter Ginnie Graham revealed that documents removed from public view included financial records of companies and hospitals, settlements in wrongful-death lawsuits, divorce proceedings, protective orders and name changes.
So why should Bartlett’s divorce case remain open to public scrutiny?
First, the public is entitled to make the most informed choice possible when selecting who will operate its government. Divorce files, like many other court records, can provide valuable information about a candidate.
For example, Bartlett said the case file included financial information not just about him but also former and current business partners. The public should know about the business dealings of its would-be elected officials. More information about candidates helps us better exercise our inherent political power.
Second, if Bartlett’s records in the public court system are closed, why not seal everyone’s files?
Because the information in those court files can help each of us make more informed life-affecting decisions. Choosing a business partner? Hiring an employee? Selecting a doctor, baby-sitter or day-care provider for your child? Concerned about your daughter’s new boyfriend? Etc.
Personal information in government-held records can help us make better decisions about the people and events most important in our lives.
Third, access to court records assures the public that everyone is treated equally in our judicial system and that decisions aren’t “based on secret bias or partiality” – as the U.S. Supreme Court said in defense of open courts.
“Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law,” the Court said. The same can be said for court records sealed from public view.
Bartlett told the Tulsa World he would be “glad for any member of the legitimate media to have total access” to his divorce file. If elected mayor, would he restrict access to other government documents only to the “legitimate media”? Will he be the one to decide who is a member of the "legitimate media"?
The public’s right to know belongs to the public. That means everyone, including political bloggers.
Signing the Open Pledge is a promise to support the spirit of open government – even when it inconveniences the candidate.
Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism
