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

State employees group files criminal complaint alleging Open Meeting Act violation by state mental health board

A state employees group has filed a criminal complaint accusing the state mental health board of violating the Open Meeting Act when it approved a plan to lay off 100 employees, close centers and eliminate state's mental health beds for children.

Those actions were not listed on the board's Nov. 13 agenda.

Instead, the plan to cut the Department of Mental Health and Substance Abuse Services budget by $7.3 million was included in a monthly financial report.

The agenda item read, "Discussion and possible action regarding monthly financial report.”

Officials later told The Oklahoman that the board, which oversees the department, had voted only to accept the financial report and weren't taking action with that vote.

That tortured logic aside, the Tulsa World reported the board had voted separately on the reduction plan.

The Oklahoma Public Employees Association on Thursday asked the Oklahoma County district attorney's office to investigate whether the board violated the Open Meeting Act. (See coverage by The Oklahoman and Tulsa World.)

A violation of the Open Meeting Act is a misdemeanor punishable by a fine up to $500 and/or up to one year in the county jail for each count. (OKLA. STAT. tit. 25, § 314)

The state attorney general's office has warned public bodies not to use "report" on an agenda as a way to hide what they will be doing in a meeting.

For a detailed explanation of why the state mental health board seems to have violated the Open Meeting Act, please read an earlier posting on the FOI Oklahoma Inc. blog.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism