Owasso councilman sues city over alleged open meeting, record violations

Owasso Councilman Patrick Ross sued the town on Tuesday in an attempt to make public an investigative report that led to the resignation of the city manager.
 
Ross' lawsuit, filed in Tulsa County, alleges a number of violations of the state's open government laws, including that the City Council did not vote publicly to keep that report secret, not pursue criminal prosecution of then-City Manager Rodney Ray, and whether to fire him.
 
The lawsuit asks Judge Daman Cantrell to declare invalid the city's resignation agreement with Ray and declare the investigative report to be a public record.
 
Chris Camp, Ross' attorney, argues that the City Council also violated the Open Meeting Act during meetings on May 24, June 18, June 21 and June 25 by conducting executive sessions "for the purpose of discussing personnel matters relating to the Office of the City Manager."
 
As noted by this blog on July 12, a state attorney general opinion requires that agenda items for an executive session under the personnel exemption include either the name of the person or the person's position if it "is so unique as to allow adequate identification." (1997 OK AG 61, ¶ 5)
 
The opinion agreed that placing the person's name or unique title on the agenda would lessen the confidentiality. Still, it added:

We note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted.' While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id. ¶ 4)

As this blog did, Camp argues that listing "Office of the City Manager" isn't listing a name or unique title and is so broad that the council could have discussed any employee of that office. He notes that the title of city manager and the Office of the City Manager aren't synonymous, interchangeable terms under the city's charter and ordinances.
 
The executive sessions focused solely on Ray, the lawsuit states.
 
The council also violated the Open Meeting Act by not keeping minutes of its executive sessions on those dates, the lawsuit states.
 
Minutes of executive session discussions must be kept, the state Supreme Court said in 1980. (Berry v. Bd. of Governors of Registered Dentists, 1980 OK 45, ¶ 12)
 
A 1996 state attorney general opinion (1996 OK AG 100, ¶ 5 ) came to the same conclusion. It noted that legislators had kept confidential the minutes of lawful executive sessions under the Open Records Act (OKLA. STAT. tit. 51, § 24A.5(1)(b)) and had mandated that a willful violation of the Open Meeting Act caused the executive session minutes to be made public (OKLA. STAT. tit. 25, § 307(F)(2)).
 
Ross' lawsuit says council members were permitted to read the investigator's report only during the June 21 executive session. They weren't allowed to keep copies so the city "could respond 'truthfully' that no member of its staff or the City Council possessed a copy of the report," according to the lawsuit.
 
During the June 21 executive session, City Attorney Julie Lombardi told the council that the report was considered a confidential personnel record.
 
During that executive session, the council also discussed whether to seek criminal prosecution of Ray and a proposed resignation agreement was presented by Lombardi and discussed, according to the lawsuit.
 
It notes that neither topic was listed on the meeting agenda and the council didn't vote publicly to designate the report confidential.
 
The lawsuit points out that following that meeting, Lombardi told the Tulsa World that the investigator had presented his finding orally and that neither the city nor the council had received a written report from the investigator.
 
During the June 25 executive session, the lawsuit states, the council discussed a counter-proposal from Ray regarding his resignation agreement even though that topic was listed under a separate agenda item for public discussion.
 
Ross contends that only a vote of the council could deem the investigative report to be a confidential personnel record. Council member Jeri Moberly told the Owasso Reporter last month that the council had voted to do so on June 25 when it publicly voted to accept the resignation agreement. But the lawsuit notes that the resignation agreement didn't mention the investigative report and conceded that the agreement itself was a public record.
 
Ross' lawsuit also contends that the council violated the Open Meeting Act by conducting confidential communications with its attorney during the executive sessions even though that exemption wasn't listed on the agendas and the council didn't determine prior to going into the executive sessions that disclosure of its communication with the city attorney would "seriously impair the ability" of the council to conduct the investigation.
 
The lawsuit contends that the report is "an internal affairs investigation of a City office" and not an exempted personnel record. Placing the investigative report into Ray's personnel file did not exempt it from disclosure under the Open Records Act, the lawsuit argues. It also also notes that the report isn't actually in Ray's personnel file.
 
Even if the judge deems it a personnel record, the lawsuit argues, the report should be public as a "final action resulting in loss of pay ... or termination."
 

 
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.

Owasso councilman questions legality of decision to hide findings of investigation into city manager's office

Owasso City Councilman Patrick Ross believes that only a vote of the council can keep secret the findings of the investigation that led to the resignation of the city manager.
 
Following an executive session on June 25, Mayor Doug Bonebrake told the Owasso Reporter that the investigation report compiled by Tulsa lawyer Guy Fortney would be kept confidential as a personnel record for City Manager Rodney Ray.
 
However, Bonebrake told the newspaper that the report would be kept by Fortney and not placed in Ray’s record. Such an arrangement raises additional doubt about whether the report can be considered a personnel record.
 
The City Council accepted Ray's resignation during the June 25 meeting and agreed to pay him more than $185,000. The council had placed Ray on administrative leave May 24 and authorized Fortney's investigation of an internal complaint against Ray.
 
In an email interview today, Ross said City Attorney Julie Lombardi told the council during an executive session June 21 that the report was considered a confidential personnel record.
 
But the council should have made that decision, Ross argued in a July 3 letter to the other council members, Owasso Police Chief Scott Chambliss and Tulsa County District Attorney Tim Harris.
 
"The Oklahoma Open Records Act does not require that personnel records be kept confidential," Ross pointed out.
 
Instead, the law says, "A public body may keep personnel records confidential." (OKLA. STAT. tit. 51, § 24A.7(A) (emphasis added))
 
"Therefore," Ross contended, "before sealing (or, alternatively, publishing) the results of Fortney’s investigation, the Owasso City Council was tasked with deciding whether or not it would designate such results as confidential.
 
"Further, in order for that decision to be valid, the City Council was required to adhere to the formalities of the [Open Meeting] Act, including placing the item on the agenda and publicly voting on the item. Neither happened here.
 
"Instead, the June 25th agenda contained only three items ... on which the City Council was allowed to vote, namely: (1) whether to go into executive session; (2) whether to enter into a resignation agreement with Rodney Ray; and (3) whether to appoint Warren Lehr as Interim City Manager.
 
"Nowhere on the agenda did it indicate that the City Council would be addressing and separately deciding whether or not to exercise Section 24A.7's confidentiality option with respect to Fortney’s investigative report."
 
Though not noted by Ross, the council's agendas for June 21 and June 25 might be considered violations of the Open Meeting Act for another reason.
 
Both agendas listed an executive session "for the purpose of discussing personnel matters relating to the Office of the City Manager, including matters related to job performance, such executive session provided for in O.S. 25, Section 307(B)(1)."
 
However, agenda items for an executive session under the personnel exemption must include either the name of the person or the person's position if it "is so unique as to allow adequate identification," according to a 1997 attorney general opinion. (1997 OK AG 61, ¶ 5)
 
Listing "Office of the City Manager" isn't listing a name or unique title and is so broad that the council could have discussed any employee of that office.
 
In a matter unrelated to the internal investigation, Ray pleaded not guilty Wednesday to charges of writing a bogus check in excess of $1,000 and filing a false police report.
 

 
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.

Proposed OSU policy would force faculty lawsuits for personnel documents guaranteed by Open Records Act

A proposed policy change would force Oklahoma State University faculty to sue the school to obtain un-redacted copies of certain personnel records even though they are entitled to the complete documents by the Open Records Act.
 
At issue is faculty member access to original peer-review letters, written by professors at other universities, that OSU officials use in deciding whether to grant tenure and promotions to faculty.
 
Under OSU's current policy, faculty members may obtain the original letters if they chose not to waive their right to them under the Open Records Act.
 
But the proposed change would drop the waiver option and provide faculty members with copies of their letters only after each "external reviewer's name, institutional affiliation and relationship with the candidate are redacted."
 
"The University will provide the candidate with copies of the original external letters, which reveal the identities of the letter writers, only when required to do so by a legal proceeding," the RTP Task Force recommended in November.
 
(I note that in lieu of an expensive lawsuit, faculty would be entitled under the Open Records Act to file a criminal complaint against the individual university official refusing to provide a record in violation of the statute. The maximum punishment is a $500 fine and one year in the county jail.)
 
The Faculty Council will consider the proposal on Tuesday. The Board of Regents would have the final say-so.
 
The impetus for change came in fall 2011 when OSU Provost Robert Sternberg began advocating a policy of keeping the entire peer-review letter from faculty. Some Faculty Council members consider the current proposal a compromise.
 
But it's one that flies in the face of the state Open Records Act, which grants each public employee "a right of access to his own personnel file." (OKLA. STAT. tit. 51, § 24A.7(C))
 
The right of faculty members to obtain the un-redacted peer-review letters also is supported by a 1986 Oklahoma attorney general opinion that said, "Personnel investigations such as background investigations are necessarily deemed a part of the personnel file." (1986 OK AG 39, ¶ 3)
 
The attorney general said employees of the Oklahoma State Bureau of Investigation were entitled to review as a part of their personnel files any materials gathered in the background investigation of them.
 
Moreover, OSBI could not withhold the names of confidential informants who had provided information for criminal background checks of its employees unless the informant objected and then the agency determined on a case-by-case basis that the release of that name would damage the confidential informant. (¶ 16)
 
Oklahoma attorney general opinions are binding upon state agencies such as OSU.
 
Yet, the RTP proposal would create a blanket policy of withholding the names of full professors at other universities who write peer-review letters for tenure and promotion decisions at OSU. And on a case-by-case basis, those authors – who the policy says "should be leading scholars in their disciplines" – would seem hard-pressed to reasonably argue that they would be "damaged" by the disclosure of their identities to the OSU faculty members.
 
Oklahoma's Supreme Court and attorneys general have emphasized repeatedly that "disclosure of information is to be favored over finding an exemption" and that an agency's policies and procedures "must be in the letter and spirit of the Open Records Act."
 
But OSU would violate those principles and state law by adopting a policy that requires faculty members to file a lawsuit (or a criminal complaint) to obtain records to which they are entitled.
 
Individual faculty members are free to waive their right to those un-redacted letters. However, the university may not take away that right from all faculty members or create barriers such as requiring lawsuits to obtain records guaranteed by statute.
 
I am asking that the Faculty Committee oppose the proposed policy change and respect the rights granted to their colleagues by state legislators.
 

 
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.

Employee records of EMSA ambulance drivers should be subject to the state's Open Records Act

The Tulsa World requested from EMSA the full names, dates of birth, job applications, disciplinary actions and other identifying information on paramedics and EMTs following a fatal accident involving an EMSA ambulance in Oklahoma City on Dec. 10.

EMSA provided first and last names, hire dates and medical license numbers for 518 employees of Paramedics Plus -- a private contractor used by EMSA to hire the paramedics and EMTs, perform background checks and maintain the employee records.

But Parmedics Plus refused to provide other employee information, saying such records are private and not subject to the Open Records Act.

However, that information should be subject to the state Open Records Act under a series of attorney general opinions applying our open government laws to private nonprofit and for-profit corporations.

Here's why:

The Emergency Medical Services Authority is a public trust authority of the Tulsa and Oklahoma City governments. It manages ambulance services for more than 1 million people in the two cities and surrounding areas.

EMSA says nearly three-quarters of its operating budget comes from patient billing revenues.

But cities provide the rest either directly through general fund allocations or indirectly through a fee placed on residents' utility bills. For example, the agency receives about $4.8 million a year from a monthly utility-bill fee paid by Tulsans, the Tulsa World reported.

EMSA owns the 89 ambulances, which cost up to $150,000 each.

The public agency knows the names of employees who drive its ambulances but doesn't possess the job applications or records of disciplinary actions, an EMSA attorney told the Tulsa World.

Those records are in the hands of Paramedics Plus, a wholly-owned subsidiary of East Texas Medical Center (ETMC), based in Tyler, Texas. (ETMC is a not-for-profit organization that operates the nation's second-largest rural EMS system with a service area spanning more than 17,000 square miles, according to the EMSA website.)

EMSA's Board of Trustees apparently didn't include in its contract with Paramedics Plus a provision treating the employee information as open records to the same extent as those of government employees.

Even so, a series of attorney general opinions indicates that those employee records are subject to the personnel provisions of the Oklahoma Open Records Act.

A 1981 opinion said the statute applies to private nonprofit corporations that "have entered into contractual arrangements with municipalities to operate or maintain public property for and on behalf of such municipalities...." (1981 OK AG 184, ¶ 7)

Such corporations "have been entrusted with the affairs of government," the opinion said. "Especially is this so where the contract vests discretion in the nonprofit corporation to possess and operate public property for a joint purpose of the municipality and the nonprofit corporation." (Id.)

This ruling applied to the records "pertaining to the operation or maintenance of public property," the opinion said. (Id. ¶ 10) (emphasis added)

"To find otherwise would permit public officials to abdicate to private parties their duties with respect to keeping records concerning such matters and would place such records beyond the reach of interested members of the public desiring to become informed upon matters pertaining to the operation and maintenance of public property," the opinion said. (Id.) (emphasis added)

It concluded:

Where a municipality has contracted with a nonprofit corporation to operate public property, records pertaining to the operation, maintenance or improvement of such property or the administration or performance of the contract are public records open for public inspection, even though such records may be kept and maintained in the custody of the nonprofit corporation.

Subsequent attorney general opinions have said for-profit and nonprofit corporations can also be subject to the Open Meeting Act.

A 2002 opinion explained:

Although private for-profit and non-profit organizations are not mentioned in the [Open Meeting Act] definition of public body, that does not necessarily prevent the Act from applying to private organizations. There are at least two situations in which a private organization will be subject to the Act: (1) if the private organization is a "subordinate entity" which exercises actual or de facto decision-making authority on behalf of a governmental body; or (2) if the private organization is "supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property." (2002 OK AG 37, ¶ 2) (emphasis added)

While those opinions focused on whether the corporations were "supported in whole or in party by public funds," that is only one of three qualifiers found in both statutes.

To be a public body under the Open Meeting Act, the entity "must have one of three characteristics:

1. it must be supported in whole or in part by public funds;
2. it must be entrusted with the expending of public funds; or
3. it must administer public property.”
   
   (2002 OK AG 5, ¶ 7 (citing OKLA. STAT. tit. 25, § 304(1)).

(See also 2002 OK AG 42, ¶ 3 ("The Silver Haired Legislature, as a group of individuals working on a specific project or general goal, would be considered a public body within the definition of the Open Meeting Act if (1) it is 'supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property,'; or (2) it is a 'subordinate entity' created by a public body and exercises actual or de facto decision-making authority on behalf of that public body.") (emphasis added))

Likewise, under the Open Records Act, a public body must be

1. Supported in whole or in part by public funds, OR
2. Entrusted with the expenditure of public funds, OR
3. Entrusted with administering or operating public property.
   
   (OKLA. STAT. tit. 51, § 24A.3(2))

This doesn't mean that, as a 2002 attorney general opinion acknowledged, the records of all companies selling goods or services to government are subject to the state's open government laws. (2002 OK AG 37, ¶ 17)

But Paramedics Plus employees have been entrusted with operating the publicly owned ambulances on behalf of a public agency, EMSA. Therefore, their personnel files should be subject to the provisions of the Open Records Act.

Oklahomans are entitled to know and should know who these employees are, their qualifications and any disciplinary actions taken against them.


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.

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.

Enid officials won't identify two police officers placed on administrative leave because of homicide investigation

Enid officials won't tell the public which two police officers are under investigation because of how a homicide investigation was handled, the Enid News & Eagle and The Oklahoman reported this week.

The two officers are on paid administrative leave, the newspapers reported.

The News & Eagle noted that the public statement it received from police officials said the officers were “suspended with pay.”

The public might never know the names of the officers.

A recent attorney general opinion said a public agency may keep secret the names of employees placed on paid administrative leave if, under the agency’s personnel policies, that action doesn’t constitute “a ‘final’ or ‘disciplinary’ action, nor a ‘final disciplinary action resulting in loss of pay, suspension, demotion, or termination.’” (2009 OK AG 33)

The opinion came about after Oklahoma City officials refused to identify an employee placed on paid administrative leave during an investigation into the possible misuse of a federal grant.

Attorney General Drew Edmondson said once the investigation is complete and a final disciplinary action occurs, “the record(s) indicating that action must be must be available for public inspection and copying."

The Oklahoma Open Records Act makes public "any final disciplinary action resulting in loss of pay, suspension, demotion of position, or termination." (OKLA. STAT. tit. 51, § 24.A(7))

It permits, but does not require, public bodies to keep confidential the personnel records related to "internal personnel investigations including examination and selection material for employment, hiring, appointment, promotion, demotion, discipline, or resignation."

Enid police Capt. Jack Morris told The Oklahoman, "There is no disciplinary action taking place, and this is normal protocol.”

The News & Eagle reported that Enid City Attorney Andrea Chism disavowed any connection to the press release and called the use of the word suspension unfortunate.

According to both newspapers, the Oklahoma State Bureau of Investigation will conduct a criminal investigation into the officers' actions. An administrative investigation by the police department would follow.

“I’m not releasing the names until a decision is made on criminal actions or disciplinary action requiring the release of open records,” Enid Police Chief Rick West told the News & Eagle.

Update: "Attorney for Grassino, Nichols comes forward with identities," Enid News & Eagle, Dec. 22, 2009.

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

AG tells state agencies the burden is on them to prove disclosure of employee DOB is clearly an unwarranted invasion of privacy

Oklahoma Attorney General Drew Edmondson told state agencies, boards and commissions this week that the birth dates of their employees are presumed to be public records and should be released upon request.

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

"If the exception is claimed the burden would be on the agency to demonstrate that the employee's personal privacy interest outweighs the public interest in producing the record," Edmondson said.

If a court overturns that determination, the agency would be liable for the plaintiff's attorney fees, he reminded agency officials.

(Unfortunately, that monetary penalty might not motivate many public officials to give serious weight to the public's interest because the money comes from taxpayers, not their own pockets.)

Edmondson also told agencies they could not enact blanket policies under which all employee birth dates would be considered private.

In a press release Tuesday, Edmondson said the new opinion "revised some admittedly confusing language."

For more on the revised opinion, 2009 OK AG 33, read the earlier posting on this blog.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

OK AG says OKC officials should release DOB of employee placed on administrative leave

Our state attorney general on Monday added his voice to the chorus of open government experts calling for Oklahoma City officials to release the birth date of an employee placed on administrative leave during an investigation of a federal grant.

Speaking at an open government workshop in Tecumseh, Drew Edmondson also said OKC officials should consider whether identifying a second employee placed on administrative leave would serve the public good, The Oklahoman reported today.

He said governments should err on the side of transparency regarding the release of dates of birth of employees. OKC officials have argued that releasing the birth date of the employee would be an unwarranted invasion of privacy.

However, Edmondson said it’s difficult to contend that birth dates are private when they are found in a number of public records – an argument made in this blog and in The Oklahoman in the past week.

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

OKC official cites federal law on drivers’ licenses as reason to block public access to information in city personnel files

Does a federal statute regarding drivers’ licenses block public access to some information in the personnel files of local government employees?

Oklahoma City Attorney Kenny Jordan thinks so – despite the wording of the federal statute and the Oklahoma Open Records Act.

The Oklahoman this week requested the date of birth of Ed Martin, a program director placed on administrative leave as OKC officials investigate potential problems with his program’s management of a federal grant.

Jordan cited a state Open Records Act exemption for “personal information within driver records” as one reason for not releasing the information. He noted that Martin’s date of birth is on his driver’s license, the newspaper reported.

But if Jordan’s reasoning were correct, then the public would not be entitled to know the names of any city employees because their names are also on their drivers’ licenses.

The Open Records Act specifically exempts “personal information within driver records as defined by the Driver’s Privacy Protection Act.” (OKLA STAT. tit. 51, § 24A.5(1)(c))

The Driver’s Privacy Protection Act specifically prohibits under most circumstances the release of “certain personal information from State motor vehicle records.” (18 U.S.C. § 2721)

“[A] State department of motor vehicles, and any officer, employee, or contractor, thereof, shall not knowingly disclose or otherwise make available to any person or entity personal information about any individual obtained by the department in connection with a motor vehicle record,” the statute states. (id. at § 2721(a))

It defines a motor vehicle record as “any record that pertains to a motor vehicle operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by a department of motor vehicles.” (id. at § 2725(1))

The federal statute doesn’t explicitly list date of birth among the personal information on a driver’s license that should not be disclosed.

"'Personal information' means information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information.” (id. at § 2725(3))

But even if it did, here are two reasons why the statute doesn’t block access to information in city personnel files:

1. The City of Oklahoma City and the Oklahoma Department of Public Safety, the state agency that issues drivers licenses, are NOT the same entity.

2. City government personnel files and state-issued drivers licenses are NOT the same document.

When officials cite ridiculously inapplicable laws as was done here, they not only frustrate the public’s right to know but also hurt their own credibility. Why resort to such a tactic unless no legitimate statutory exemption exists.

In coming days, the FOI Oklahoma Blog will examine Jordan’s other stated reason for non-disclosure and also the city’s explanation for not revealing the name of another employee placed on administrative leave during the same investigation.


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