Open government awards go to Tulsa World, OKC public information director; OKC attorney, Oklahoma County district attorney garner Black Hole Award

The Tulsa World and Kristy Yager of the city of Oklahoma City were named winners Saturday of FOI Oklahoma awards for their commitment to freedom of information and openness in government.

The organization’s Black Hole Award for thwarting the free flow of information went to Oklahoma County District Attorney David Prater and the Oklahoma City city attorney’s office.

The third-annual awards were presented during Oklahoma Sunshine `10 conference: Privacy, Politicians & the Public’s Need to Know. The conference was in conjunction with national Sunshine Week activities celebrating and promoting the public's right to know.

The World received the Ben Blackstock Award for its nearly decade-long effort to gain access to computerized records withheld by the Department of Public Safety. The award goes to a non-governmental person or organization.

The newspaper filed suit in 2001 after then-Commissioner Bob Ricks rejected almost an entire open records request for computerized and paper records on the Oklahoma Highway Patrol’s use of force, traffic stops and searches and agency procedures.

The World sought the records to review the agency’s treatment of minorities who were stopped and searched, among other issues.

After court rulings, the World resolved issues with the agency in 2008 and 2009. The DPS recently paid a substantial portion of the legal fees the World incurred.

"We commend the Tulsa World for being a leader in open records and open meetings issues in this state,’’ said Dick Pryor, president of FOI Oklahoma.

"The World has a strong and significant tradition of protecting the public’s right to know," said Pryor, deputy director and managing editor of OETA, the Oklahoma Network.

An honorable mention went to Chris Tharp, who hired an attorney to compel the Broken Arrow school district to release information contained in detailed legal bills. (Read related blog postings.)

An honorable mention also went to Carol Austin of Vinita who used the state’s Open Records Act to reveal information about Vinita city government. (Read related Tulsa World story.)

Yager won the Sunshine Award for consistently working to provide useful information to the public. The award is presented to a governmental organization or individual who has shown a commitment to freedom of information.

As public information director for Oklahoma City, Yager has worked with local media in redesigning the city's Web site to make it easier to find information.

Live streaming video is available of city council meetings and even some community meetings. Video of the council meetings are linked to the agenda. By clicking on an agenda item, the video goes straight to the discussion of that item.

A reporter who nominated Yager said she and her staff "seem to understand their role is to provide the public with honest and accurate information and let the chips fall where they may, rather than constantly controlling the message with an iron fist.’"

For the Black Hole Award, FOI Oklahoma cited the refusal of the city attorney and Prater to release employee birth dates even after an attorney general’s opinion said the information was presumed open.

Without a birth date, it is impossible to distinguish between people who might have common names.

Prater called a request for such information by The Oklahoman "clearly an unwarranted invasion of the personal privacy’" of county employees.

He refused to explain why releasing birth dates would be an invasion of privacy and did not address the public’s interest in checking names and birth dates of county employees against databases of criminal records, political contributions and other information the public might want to know about its employees.

Prater told a reporter that he was not concerned about any confusion his decision might cause. (Read related blog posting.)

The next week, Assistant City Attorney Richard Smith told the newspaper that disclosure of city employee birth dates would not "assist citizens in the exercise of" their inherent political power. He said the reporter would have to request the birth date for each employee individually and explain its "specific concern in relation to that employee." (Read related blog posting.)

Meanwhile, Tulsa Mayor Dewey Bartlett Jr. honored the attorney general opinion and ordered employee birth dates released with the city’s payroll data as it has done for several years.

FOI Oklahoma is a statewide organization that actively works to promote the right of access by the public.

Other coverage of the awards:

• Tulsa World receives nod for freedom fight


• Oklahoma group roasts local lawyers over records

Oklahoma City officials refuse to disclose DOBs of employees; newspaper criticizes DA for advice not to release county employees DOBs

Oklahoma City won't disclose the birth dates of its employees, saying that allowing the public to use the information to check criminal records, political contributions and other background information would not "assist citizens in the exercise of" their political power, The Oklahoman reported today.

Instead, Assistant City Attorney Richard Smith told the newspaper it must request the birth date for each employee individually and explain its "specific concern in relation to that employee."

Also today, the newspaper in an editorial criticized the decision last week by Oklahoma County District Attorney David Prater that disclosure of all county employee birth dates would constitute a clearly unwarranted invasion of the employees' privacy.

Prater gave no explanation for his decision in either a letter to the newspaper or later to reporter Bryan Dean.

"I'm not concerned about your confusion," he told Dean.

The Oklahoman on Tuesday took exception to Prater's comment.

"Really? The county’s top prosecutor should care a lot about transparency when it comes to open records issues," the newspaper said.

The editorial noted that state Attorney General Drew Edmondson has released the names and DOBs of his employees.

"If Prater can do so, then he should," the newspaper said. "Otherwise he’s flouting the law and setting a poor precedent for the many city and county officials who look to him for guidance.

This blog, too, criticized Prater's reasoning a week ago and pointed out that his letter was mute on the most-important point: Why the public's interest in learning about its employees was so outweighed by individual employee privacy that disclosure would constitute an unwarranted invasion of privacy.

Oklahoma City, apparently taking a cue from Prater, offered no explanation of how disclosure of the information would constitute an unwarranted invasion of privacy.

In an e-mail Dec. 23, Smith told the newspaper, "After much thought and careful consideration, the City must deny your request for all employees’ dates of births."

That refusal -- just like Prater's -- runs contrary to a recent state attorney general opinion.

Earlier this month, Edmondson said the birth dates of government employees are presumed to be public information and should be released upon request. (2009 OK AG 33)

Officials may refuse to release the information only if they determine "the employee’s interest in nondisclosure is greater," he said. Disclosing the birth date would have to constitute an “unwarranted invasion of privacy.”

In short, the public interest is presumed to exist and is given greater weight than the employee's privacy.

But Oklahoma City has taken the opposite approach by presuming that disclosure is an unwarranted invasion of privacy and by requiring the requester to justify the public's interest. In this instance, Smith is saying no public interest exists.

Oklahoma City also has, in effect, instituted a blanket policy of nondisclosure, which Edmondson said governments are prohibited from doing. Officials must justify their refusal on a case-by-case basis, he said.

Unlike in many other states, attorney general opinions in Oklahoma are binding unless overturned by a court or the Legislature.

In 1919, for example, the Oklahoma Supreme Court said, "It is the duty of public officers, such as county superintendents, when in doubt as to the construction of an act of the Legislature, to follow, and not disregard, the advice of the Attorney General...." (Rasure Co. Supt. v. Sparks, 1919 OK 231, ¶ 7).

See also Branch Trucking Co. v. Okla. Tax Comm'n, 1990 OK 41, ¶ 10 (“Since 1919, the Attorney General's opinions have been binding on state officials unless the opinion is inconsistent with a final determination of a court of competent jurisdiction.”) (citing Rasure);

State ex rel. York v. Turpen, 1984 OK 26, ¶ 5 (“While in many states such an Attorney General's opinion is merely advisory, in this state it has been held such an opinion is binding upon the state official affected by it and it is their duty to follow and not disregard those opinions. This duty continues until a judgment of a court of competent jurisdiction relieves the public official of the burden of compliance.” (citing Rasure); and

2006 OK AG 35, ¶ 29 (“The effect of an Attorney General's Opinion in Oklahoma is different than it would be in many other states. In most jurisdictions, opinions or advice of the attorney general is advisory only, i.e., non-binding on the officials to whom it is addressed. In such jurisdictions attorney general opinions have in no sense the effect of judicial utterances. This is in sharp contrast to the role of the Attorney General in Oklahoma, where the Attorney General's opinion is binding on state officials to whom it applies, except only to the matter of constitutionality of statutes.”) (citing State ex rel. Fent v. State ex rel. Okla. Water Res. Bd., 2003 OK 29, ¶ 16).

Unfortunately, many local and state officials seem to pick and choose which attorney general opinions -- or which parts of opinions -- they're willing to follow and ignore those they don't like.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

OKC discloses DOB of employee; newspaper learns he filed bankruptcy prior to city investigation

An Oklahoma City employee placed on administrative leave during an investigation into the misuse of grant money had filed personal bankruptcy a month before the city’s investigation began, The Oklahoman learned after city officials disclosed the employee's birth date late Tuesday.

The newspaper reported that city officials have not answered its request for all city employee birth dates. In an e-mail, a city attorney asked the newspaper for an explanation of the public interest in knowing that information.

City officials had refused since August to release the birth date of Ed Martin, the employee under investigation. A week ago, Assistant City Attorney Richard Smith said disclosure would be an unwarranted invasion of privacy.

Earlier that week, Oklahoma Attorney General Drew Edmondson said birth dates of public 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 state agencies of his formal opinion on the subject.

Smith changed course on Tuesday, telling reporter Bryan Dean in an e-mail:

"Mr. Martin could claim that his date of birth is confidential, however, after much debate and consideration, the City has decided that Mr. Martin’s interest is outweighed by the public’s exercise of their political power.

"I trust that you and the Oklahoman will exercise the utmost care in deciding if you will publish this date of birth," Smith said.

The newspaper did not publish Martin's birth date.

Citing Edmondson's opinion, Smith also made a request of the newspaper.

"[T]o assist the City in the balancing test required by the revised opinion of the Attorney General, please advise me what you perceive to be the public’s interest in knowing each employee’s date of birth," he wrote.

For more on Edmondson's opinion, 2009 OK AG 33, read this blog's earlier posting.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

OKC refuses to disclose DOB of employee placed on administrative leave during investigation

Disclosing the birth date of a city employee placed on paid adminstrative leave as officials investigate mismanagement of public funds would constitute an warranted invasion of privacy, an Oklahoma City official told The Oklahoman on Thursday.

But, Assistant City Attorney Richard Smith indicated to the newspaper, disclosing the birth date of an employee not under investigation wouldn't be an invasion of privacy.

Say what?

Smith's explanation flies in the face of a revised opinion issued this week by state Attorney General Drew Edmondson.

Dates of birth of government employees are presumed open and should be released unless the agency can demonstrate that the employee's privacy outweighs the public interest in the record, Edmondson said. (2009 OK AG 33)

The opinion notes that agencies and other public bodies may not enact blanket policies declaring all employee DOBs confidential.

Edmondson told the newspaper last week he thinks agencies are "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,” he said.

In contrast, OKC officials don't seem hesitant to make the claim. OKC seems to think the public has little or no interest in an employee placed on administrative leave when city officials discovered federal grant funds had been mismanaged in a program overseen by the employee.

If not under these circumstances, when would the public have an interest that outweighs the employee's protection against a clearly unwarranted invasion of privacy?

The Oklahoman requested the birth date in an effort to conduct background research after the employee was identified as part of the investigation.

As reporter Bryan Dean noted, "Without a birth date to match to common names, it is impossible to determine a public employee’s criminal record or other vital background information."

Edmondson seems to have faith that government officials will give serious consideration to the public's interest in the disclosure of employee birth dates.

Oklahoma City officials are proving him wrong.

But they are demonstrating why the decision to release records should not be put in the hands of individual officials.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism