Stillwater Medical Center Authority says disclosing hospital officials’ salaries would be clearly unwarranted invasion of privacy, sues requester for $3,000 cost of copying records, held ‘retreats’ in Tulsa, OKC

The Stillwater Medical Center Authority says disclosing the salaries of the hospital’s top officials would put it at a hiring disadvantage and “would constitute a clearly unwarranted invasion” of the employees’ privacy, according to documents filed in an open records lawsuit against the public authority.

Last week, the hospital authority filed a counterclaim, seeking the $3,038.25 cost of copying 12,153 pages that the requester has not picked up.

The requester, former Stillwater commissioner Henry “Hank” Moore Jr., sued the hospital authority in late August. He was seeking, among other information, the salaries for the medical center’s top five senior management officials. (See Moore v. Stillwater Medical Center Authority, No. CJ-2010-408 (Payne County) (Aug. 24, 2010))

The Stillwater Medical Center Authority refused to disclose the salaries based on advice from the law firm McAfee & Taft in Oklahoma City.

That advice, written by a summer associate, relied upon a 2009 attorney general opinion on whether the birth dates of government employees are public records when contained in their personnel files. (2009 OK AG 33)

In that opinion, Attorney Drew Edmondson said the birth dates of government employees are presumed to be public information and should be released upon request. (¶ 11)

Officials may refuse to release the information only if they determine that disclosing the birth date would constitute an “unwarranted invasion of privacy,” Edmondson said.

Relying upon that opinion, McAfee & Taft concluded that the hospital authority would be required to make the salary information public unless the board designated "salary and payroll information as confidential" because disclosure "would result in a clearly unwarranted invasion of the employee's privacy."

On July 27, the Stillwater Medical Center Authority voted that "disclosure of employee-specific salary information would constitute a clearly unwarranted invasion of privacy of Hospital employees." The agenda item was "Determination if Disclosure of Certain Information Would Constitute a Clearly Unwarranted Invasion of Privacy."

If the board determined that release of ALL employees' salaries would constitute an invasion of privacy, then the board's action violated the attorney general opinion. Edmondson had said such determinations must be made on an individual basis. "A general policy prohibiting disclosure would constitute a legislative determination beyond the authority of a public body," he said. (¶ 11)

To make the determination on an individual basis, the public body would have to weigh the public's interest in disclosure against the employee's interest in non-disclosure, Edmondson said. (¶ 31)

Describing this weighing of competing values, McAfee & Taft's memo said:

The Attorney General considered whether knowledge of a birth date would in any way assist the public in evaluating a public employee and determined that the information would not be helpful to the public. The privacy interest of employees outweighed the public interest.

However, that is not what the final AG opinion states.

The opinion originally said, “Disclosing employee’s birth dates seems as unlikely to assist citizens in finding out what their government is up to as disclosing employee’s ‘payroll deductions’ or the employment applications of persons not hired by the public body, which the ORA expressly allows public bodies, in their discretion, to keep confidential.”

But that was deleted from the revised opinion after Edmondson told The Oklahoman:

My 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.

To the new opinion, Edmondson added:

It should be noted that since the Legislature did not specifically make dates of birth confidential the presumption would be that they are open unless the exception is (1) claimed and (2) found to outweigh the public interest in the requested record. (¶ 11)

Shortly after issuing the revised opinion, Edmondson released the names and birth dates of his employees.

Even so, McAfee & Taft had no trouble determining that employee privacy outweighs the public interest, saying:

On the one hand, knowing the salary amounts paid by a public body to its employees could assist the public in judging the efficiency of a public body and of its employees. On the other hand, it is likely that most employees would prefer that their salary information remain private. Animosity among public employees could also arise if employee-specific salary information becomes available, especially if significant variations in compensation exist among employees.

Overall, it would be reasonable for the trustees of the Authority to determine that the public interest in obtaining general salary information does not outweigh the interest of the employees in maintaining the confidentiality of such information and that the disclosure of employee-specific salary information would constitute a clearly unwarranted invasion of privacy.

I disagree with that conclusion. First, that determination in favor of employee privacy is not an individual application but rather a blanket policy, which the attorney general opinion said is prohibited.

Second, public employees' possible preference for secrecy does not outweigh the inherent right of Oklahomans "to know and be fully informed about their government." (See OKLA. STAT. tit. 51, § 24A.2)

Third, "animosity among public employees" because of "significant variations in compensation" is unrelated to privacy. It's a reason why the trustees and hospital officials want to keep employees in the dark. Which supports the public interest in disclosure. Why should "significant variations in compensation exist among [government] employees" doing the same or similar jobs?

An Oklahoma court seems unlikely to rule that the salaries of public hospital employees should be kept secret from the public. Courts in other states have consistently ruled that disclosure of public employee salaries does not constitute an unwarranted invasion of privacy and that the public has a right to know what those employees earn. (I will discuss examples of such cases soon on the blog.)

But here's the most important reason why an Oklahoma court will side with the public's need to know: The Oklahoma Open Records Act requires that the salaries of public employees be made public.

The balancing of privacy and public interests prescribed by the attorney general for birth dates came about only because birth dates are not mentioned in the Open Records Act. In contrast, the statute says:

All personnel records not specifically falling within the exceptions provided in subsection A of this section shall be available for public inspection and copying including, but not limited to, records of: ... the gross receipts of public funds. (OKLA. STAT. tit 51, § 24A.7(B)(2))

McAfee & Taft's memo says the Open Records Act "does not address salary information." I believe that is incorrect. Although the statute doesn't use the word "salary," salaries are included in the gross receipts paid to the employees.

After the lawsuit was filed, Stillwater Medical Center President and CEO Jerry Moeller disclosed his salary to Moore, The Stillwater NewsPress reported.

Moeller said his salary is $276,261 with a bonus last year of $11,050. Moeller receives a car allowance of $7,200 and the use of a Karsten Creek membership valued at $7,600, the newspaper reported.

Certainly seems like information the public should know about a public employee.

In a court document filed on Oct. 18, the hospital authority cited other reasons for not releasing the salary information, including:

• Releasing the information may give other hospitals an unfair competitive advantage
  
• Disclosure was detrimental to the competitive interests and advantage of the Hospital
  

The hospital authority also contended that the salary information doesn’t have to be disclosed because the medical center is “owned and operated by a public trust, not supported by tax dollars, unlike governmental agencies and subdivisions.”

However, as the hospital authority conceded in its response to the lawsuit, the Oklahoma Court of Civil Appeals held in 2003 that the Stillwater Medical Center is “a political subdivision for the purposes of the Oklahoma Governmental Torts Claim Act.” (See Elledge v. Stillwater Medical Center, 2003 OK CIV APP 6)

More importantly, the hospital authority also conceded that as a political subdivision of the state, it is subject to the Open Records and Open Meeting laws.

The hospital authority also said in its court filing that it would not conduct meetings outside of Stillwater. Moeller had told The Stillwater NewsPress in August that the board had in years past conducted “retreats” in Tulsa and Oklahoma City until City Attorney John Dorman “advised us that it might not keep with the spirit of the law.”


That's an understatement considering the Open Meeting Act requires that public meetings "be held at specified times and places which are convenient to the public." (OKLA. STAT. tit. 25, § 303)

The Stillwater Medical Center Authority also seems to be violating the Open Meeting Act by not keeping minutes of its executive committee meetings.

Among the exhibits filed by Moore is a letter to him from Moeller in which Moeller writes, "There is no problem with [providing] the agendas and minutes of the regular and special Board meetings, but we do not keep minutes at any Executive Committee meetings."

But the Open Meeting Act's definition of public body includes "all committees or subcommittees of any public body.” (OKLA. STAT. tit. 25, § 304(1))

The statute also requires that each public body keep minutes of its meetings. (OKLA. STAT. tit. 25, § 312)

So why aren't minutes kept of the board's executive committee meetings?

The Stillwater Medical Center Authority would do well to keep in mind these admonitions by our state appellate courts:

Because the Open Meeting Act was “enacted for the public’s benefit,” the statute “is to be construed liberally in favor of the public,” the state Supreme Court said in 1981. (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)

The principle is “very simple,” the state Court of Civil Appeals said that year. “When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State.” (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57)

That includes even the Stillwater Medical Center Authority.

 

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

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

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

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

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

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

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

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

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

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

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

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


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

GOP gubernatorial candidates to participate in Sunshine Conference

Republican gubernatorial candidates Sen. Randy Brogdon and Robert Hubbard have agreed to discuss their views on government transparency at FOI Oklahoma Inc.'s third annual Sunshine Week conference.

Oklahoma Sunshine ’10: Privacy, Politicians & the Public’s Need to Know will be held March 13 at The Oklahoman, 9000 N. Broadway, Oklahoma City.

The conference will celebrate FOI Oklahoma Inc.'s 20th anniversary and preview what's ahead for open government in the state.

Experts will discuss the issue of individual privacy versus the public’s need to know. State legislators are considering exempting government employees' dates of birth from the Open Records Act. SB 1753, filed by Sen. Debbe Leftwich, D-Oklahoma City, comes on the heels of a state attorney general opinion that those birth dates are presumed open and may be withheld only if officials can demonstrate on a case-by-case basis that disclosure would constitute a clearly unwarranted invasion of privacy that outweighs the public interest. (2009 OK AG 33)

The conference's afternoon session will feature a question-and-answer session with candidates for governor and attorney general. All those candidates were invited last Thursday to participate in the session. Each candidate will be afforded three minutes to initially state his or her position on open government and any proposals regarding government transparency and the state’s open meeting and records laws.

Brogdon of Owasso and Hubbard, a Yukon businessman, are the first to accept the invitation.

The recipients of FOI Oklahoma's three annual FOI awards will be announced during the conference luncheon.

Early registration for the conference must be received by March 10.

Non-members: $30 (Includes lunch and one-year membership in FOI Oklahoma Inc.)

College/High School Students: $15 (Includes lunch and one-year membership in FOI Oklahoma Inc.)

FOI Oklahoma Inc. Members: $10

Additional $5 for registrations received after March 10

Make check or money order payable to FOI Oklahoma.

Mail payment to:
Oklahoma Sunshine '10
Oklahoma Library Association
300 Hardy Drive, Edmond, OK 73013
405–525–5100 • Fax: 405–525–5103
kboies@sbcglobal.net

Purchase Orders, and Visa and MasterCard payments can also be accepted.
Please contact the Oklahoma Library Association.

More information will be posted on the FOI Oklahoma Web site in the coming weeks.


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

State Senate bill would exempt government employees' birth dates from Open Records Act, make identifying public employees virtually impossible

Government employees' dates of birth would be exempted from the Open Records Act, under a bill filed by state Sen. Debbe Leftwich, D-Oklahoma City.

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

Leftwich wants the bill to take effect immediately if passed by the Legislature and signed by Gov. Brad Henry. She filed the bill Jan. 11.

On Sunday, The Oklahoman pointed out that the names of more than 250 Oklahoma City and Oklahoma County employees match those of registered sex offenders.

But the newspaper was unable to determine if the employees and sex offenders are the same people because city and county officials have refused to disclose their employees' birth dates.

Their refusal comes despite a recent legally binding attorney general opinion stating that the birth dates are presumed open and may be withheld only if officials can demonstrate on a case-by-case basis that disclosure would constitute a clearly unwarranted invasion of privacy that outweighs the public interest. (2009 OK AG 33)

In that opinion, Attorney General Drew Edmondson said public bodies may not enact blanket policies that withhold all employee birth dates.

Leftwich had requested the formal opinion from Edmondson at the request of Oklahoma City officials.

Since the opinion was issued in December, however, city and county officials have refused to release the birth dates of all employees.

Assistant City Attorney Richard Smith told the newspaper that disclosure 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."

However, Oklahoma City Councilman Pete White, an attorney, told The Oklahoman he believes the city attorney's office is misinterpreting Edmondson's opinion. He told the newspaper:

"I don’t think the privacy concerns are enough. There are too many instances where you can’t determine whether the person is a city employee. I’ve never been convinced that the value of not releasing birth records is not outweighed by the public’s need to know.”

Oklahoma County District Attorney David Prater also had advised county officials against releasing the information. He said disclosure of all county employee birth dates would constitute a clearly unwarranted invasion of the employees' privacy but would not explain his reasoning.

But The Oklahoman reported Sunday that Oklahoma County Commissioner Brian Maughan would like to see the birth dates released because the public deserves to know whether its employees are convicted criminals or tax evaders. Maughan signed FOI Oklahoma Inc.'s Open Government Pledge during his 2008 political campaign.

A dozen members of the Oklahoma House signed the pledge during the 2008 and 2009 elections. In doing so, they promised to "support legislation to strengthen the letter and the spirit of Oklahoma's Open Meeting and Open Records laws."

They also pledged 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."

They'll have the opportunity to live up to those promises if Leftwich's bill makes it to the House.


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

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

Okla. Co. DA: Disclosure of county employee DOBs would be clearly unwarranted invasion of privacy; Okla. AG releases employee birth dates

Oklahoma County District Attorney David Prater says disclosing the birth dates of all county employees would constitute a clearly unwarranted invasion of the employees' privacy, The Oklahoman reported today.

The newspaper requested the information so it could check the names of county employees against databases of criminal records, political contributions and federal bankruptcy filings.

Reporters recently discovered that an Oklahoma City employee had filed personal bankruptcy about a month before being placed on paid administrative leave because of an investigation into the misuse of public funds. Reporters were able to learn of the bankruptcy only after city officials disclosed the employee's date of birth.

In a formal opinion stemming from the city's initial refusal to disclose the birth date, state Attorney General Drew Edmondson said government employee birth dates are presumed open and public bodies may not enact policies blocking access to all employee dates of birth. (2009 OK AG 33)

Edmondson said public bodies may withhold the information only after demonstrating that the employee’s privacy outweighs the public’s interest in disclosure. Such balancing must be done on a case-by-case basis, he said.

On Monday, Edmondson released the names and birth dates of his employees, the newspaper reported.

But Prater, in a letter to the newspaper, said he would not give "approval for the blanket release of the birth dates of county employees" and was advising Oklahoma County Clerk Carolynn Caudill not to release the information.

That's essentially a blanket denial of the information, which Edmondson said was prohibited under the state Open Records Act.

In the letter, Prater told the newspaper, "I find your request for the birth dates of county employees clearly an unwarranted invasion of privacy of Oklahoma County employees."

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

"I'm not concerned about your confusion," he told Dean. "The letter speaks for itself."

The letter, though, is mute on the most-important point.

Prater provided no reasoning for 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.

Taxpayers deserve more thoughtful, informative explanations from elected officials than the short-tempered one given by Prater.

All this, though, brings us full circle to the original issue: Are birth dates such truly private information that disclosure constitutes a clearly unwarranted invasion of privacy?

Freedom of information experts say the fear that disclosing DOBs in public records will cause identity theft is unjustified. “Those fears aren’t backed up with statistics or even anecdotal evidence showing public records are a source for identity thieves,” summarized Dean in an article Aug. 31.

As Edmondson and this blog noted months ago, birth dates can be found in voter records and other public documents in Oklahoma. The same can’t be said for the Open Records Act-provided examples of an unwarranted invasion of privacy.

Under the statute, governments “may keep personnel records confidential … 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))

Employee evaluations and payroll deductions are not available in other public records. Birth dates are.

Employee evaluations and payroll deductions are documents. Birth dates aren't.

Meanwhile, the statute says the employment applications of workers hired by government are open to the public.

Courts outside Oklahoma generally have agreed that people do not have a reasonable expectation of privacy when the information is contained in statutorily mandated public documents directly related to births and deaths, marriages, divorces, arrests, land sales, or other matters of "public record."

A federal appellate court, for example, said a right of privacy did not protect the name, age, and date of birth of registered sex offenders because the information was "already fully available to the public."

The issue seems likely headed to court in Oklahoma. Expect an appeal regardless of which side wins at trial.

Until then, the decision is left in the hands of individual officials such Prater. Some will give credence to the public interest. Others won't.

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

AG revises opinion: DOBs of government employees presumed open, public bodies must determine privacy interest on a case-by-case basis

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, according to a revised opinion issued by the state attorney general Tuesday.

Oklahoma Attorney General Drew Edmondson said public bodies must decide each case individually and may not enact policies blocking access to all employee dates of birth. (2009 OK AG 33)

In the revised opinion, Edmondson also deleted a sentence questioning the public interest in knowing government employee birth dates.

However, just as in the opinion issued last week, Edmondson said public bodies have the discretion to determine if disclosing an employee’s DOB is an “unwarranted invasion of privacy.”

“In making such a determination, the public body must weigh the employee’s interest in nondisclosure against the public’s interest in disclosing the record,” Edmondson said. “If the public body determines that the employee’s interest in nondisclosure is greater, it may keep the birth date confidential….”

(Read earlier posting for background on opinion.)

Last week’s opinion seemed weighted in favor of nondisclosure and was criticized for leaving the decision in the hands of public officials. An editorial by The Oklahoman today expressed doubt that public officials would be likely to disclose the birth dates of employees.

“Instead, we foresee them regularly parsing the definitions of 'unwarranted' or the like when reporters or others try to dig for information in an effort to serve the public interest,” The Oklahoman said.

But the revised opinion is more in line with what Edmondson told The Oklahoman last week when he defended his previous writing.

“My opinion is that an agency is going to have difficulty claiming the exemption as a clearly unwarranted invasion of personal privacy,” Edmondson had told the newspaper. “My view is that the conditions under which birth dates would be confidential would be rare.”

To the new opinion, Edmondson added:

“It should be noted that since the Legislature did not specifically make dates of birth confidential the presumption would be that they are open unless the exception is (1) claimed and (2) found to outweigh the public interest in the requested record. This determination, since it involves a determination of ‘personal’ privacy must be individual in application. A general policy prohibiting disclosure would constitute a legislative determination beyond the authority of a public body.”

He also deleted a statement that seemed to favor nondisclosure.

“Disclosing employee’s birth dates seems as unlikely to assist citizens in finding out what their government is up to as disclosing employee’s ‘payroll deductions’ or the employment applications of persons not hired by the public body, which the ORA expressly allows public bodies, in their discretion, to keep confidential,” the original opinion had stated.

Like the old one, today’s opinion says 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.’”

Edmondson also again rejected Oklahoma City’s argument that the federal Driver’s Privacy Protection Act blocked access to the birth dates of its employees.

Update: The attorney general's spokesman told The Oklahoman that Edmondson wanted to "clarify the intent of the opinion."

"It bothered him (Edmondson) that some of the language in the original opinion caused people to believe that an agency of government could simply say, ‘We’re not going to give you any birth dates,’” said Charlie Price.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

AG: Gov’t may keep confidential employee DOBs and names of employees placed on paid administrative leave

Public bodies may keep employee dates of birth confidential when officials believe the employee’s privacy outweighs the public’s interest in disclosure, under a state attorney general opinion released this week.

Attorney General Drew Edmondson also 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.’”

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

The written opinion stemmed from The Oklahoman’s request for the birth date of an Oklahoma City employee placed on paid administrative leave during an investigation into the management of a federal grant. City officials also refused to identify another employee placed on paid administrative leave during the investigation.

At that time, Edmondson publicly said governments should err on the side of transparency regarding the release of employee birth dates. He said it would be difficult to contend that DOBs are private when they are found in a number of public records.

At the request of Oklahoma City officials, state Sen. Debbe Leftwich requested a formal opinion from Edmondson.

In that opinion, released on the AG Web site Wednesday, Edmondson said public bodies have the discretion to determine if disclosing an employee’s DOB is an “unwarranted invasion of privacy.”

“In making such a determination, the public body must weigh the employee’s interest in nondisclosure against the public’s interest in disclosing the record,” Edmondson said. “If the public body determines that the employee’s interest in nondisclosure is greater, it may keep the birth date confidential….”

Edmondson seems to have faith that officials will sincerely balance these two competing interests and not reflexively discount the public’s interest in disclosure.

But the opinion seems to provide government agencies with a ready-made answer favoring nondisclosure, stating:

“Disclosing employee’s birth dates seems as unlikely to assist citizens in finding out what their government is up to as disclosing employee’s ‘payroll deductions’ or the employment applications of persons not hired by the public body, which the ORA expressly allows public bodies, in their discretion, to keep confidential.”

The opinion does have one bright spot for open-government advocates. Edmondson rejected Oklahoma City’s argument that the federal Driver’s Privacy Protection Act blocked access to the birth dates of its employees.

Using the same reasoning as this blog did in August, Edmondson said the statute doesn’t list DOBs among the personal information on a driver’s license that should not be disclosed and the statute applies to the state Department of Public Safety, not the city.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism