AG opinion muddies the open records pool
Oklahoma Attorney General Drew Edmondson released an opinion this week on whether public bodies could release the dates of birth of their employees if requested under the state Open Records Act.
In the 14-page opinion, Edmondson’s office essentially left the decision over the release up to each public body. So much for providing clarity on the issue.
My colleague Bryan Dean has more on the opinion here. I also blogged about this issue back in the summer.
After reading through the opinion a couple of times, I’m finding it hard to follow the reasoning Edmondson’s office used to come to its conclusion. The opinion states:
…the [Open Records Act] does not expressly state that a public body’s employees’ birth dates are confidential.
If you believe that anything not explicitly mentioned in the law should be tilted in favor of disclosure, then we should stop right there and a public employee’s birth date should be released. But the opinion then goes on to argue whether that disclosure is a “clearly unwarranted invasion of personal privacy.” That privacy interest is not explicitly addressed in the Open Records Act, either.
The question becomes, then, how would a public body determine whether the disclosure of a personnel record or piece of information constitutes a clearly unwarranted invasion of employees’ personal privacy? This determination requires a public body to 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.
To try to answer this question, the opinion refers to state and federal case law in other areas. In a troubling aside, the opinion poses an unrelated example:
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 [Open Records Act] 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,” how will knowing an employee’s birth date assist citizens in the exercise of that political power? Disclosing employees’ birth dates seems as unlikely to assist citizens in finding out what their government is up to as disclosing employees’ “payroll deductions” or the employment applications of persons no hired by the public body, which the [Open Records Act] expressly allows public bodies, in their discretion, to keep confidential. (my emphasis)
That’s a weak argument, in my opinion, especially for those of us in the news business. Remember, the newspaper wanted the date of birth of a disciplined public employee so we could check into his criminal and legal background. This wasn’t a fishing expedition looking for the most salacious story we could publish. This was following up on a disciplinary action taken by the city of Oklahoma City toward one of its employees.
The problem is, matching court records and other public documents on name alone is a messy and inexact science. (I’d like to see anyone on Edmondson’s investigative staff try to track down a suspect or witness using just his or her name.)
The opinion gets into a discussion over dates of birth in birth and death certificates and on drivers’ license data, but it mentions nothing about dates of birth in other public documents such as voter registration records. In interviews earlier this year, Edmondson himself made that argument, but that line of thinking doesn’t show up in the opinion.
The Oklahoma State Election Board sells lists of registered voters to anyone willing to pay its fees. Among the information on there? Dates of birth.
Those voter registration lists are used by political campaigns, academics and commercial database providers such as Lexis-Nexis and Accurint. We buy the data annually for internal fact-checking purposes.
Fran Roche, assistant secretary at the Election Board, said the state brings in between $16,000 to $18,000 a year selling those voter registration lists. The board generally gets about 250 orders for voter registration lists each year.
By leaving the release of DOBs to the whims of each agency or governmental unit, Edmondson’s opinion potentially creates a class of people–public employees–whose privacy interests could now be protected at a greater level than those of registered voters.
–Paul
UPDATE 12/8/09: Oklahoma State University journalism professor Joey Senat at FOI Oklahoma reports that Attorney General Drew Edmondson issued a revised opinion on the issue earlier today. You can read the new opinion here.
Written by Paul Monies
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[...] effect, the bill would now grant public employees greater privacy protections than registered voters, licensed drivers and people who buy prescription drugs in Oklahoma. All of those transactions [...]
[...] effect, the bill would now grant public employees greater privacy protections than registered voters, licensed drivers and people who buy prescription drugs in Oklahoma. All of those transactions [...]
[...] then public employees would be afforded more privacy rights than registered voters in the state. As I’ve mentioned before, about 2 million names, addresses and dates of birth of registered voters are already available for [...]