“Privacy pirates” and the politics of fear

(d)1.a.  The home addresses, telephone numbers, social security numbers, and photographs of active or former law enforcement personnel, including correctional and correctional probation officers, personnel of the Department of Children and Family Services whose duties include the investigation of abuse, neglect, exploitation, fraud, theft, or other criminal activities, personnel of the Department of Health whose duties are to support the investigation of child abuse or neglect, and personnel of the Department of Revenue or local governments whose responsibilities include revenue collection and enforcement or child support enforcement; the home addresses, telephone numbers, social security numbers, photographs, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1).

This is how the state of Florida deals with law enforcement and open records for state personnel. Anyone want to guess what’s missing? Any reference whatsoever to dates of birth.

But the Kabuki theater continues down at the Oklahoma Capitol. For the second time in two weeks, the lawmakers on Senate Bill 1753 held a news conference on whether the birth dates of public employees should be exempt from the Open Records Act.

Last week, it was to announce their support for a lawsuit by various public employee groups against a pending open records request by The Oklahoman.* This week, it was law enforcement’s turn. See our story here; the AP version is here.

Backers of SB 1753 have cycled through several arguments for closing off the birth dates of public employees: fear of identity theft; fear of “unwarranted invasion of privacy”; and now fear of harm to law enforcement. (Read the press release here.)

At Tuesday’s press conference, Rep. Randy Terrill picked up a talking point first advanced last week by his friends at the Oklahoma Public Employees Association: that reporters for The Oklahoman were “privacy pirates” who have no regard for state employees.

“This is not a case where there has been an allegation of corruption or impropriety involving a specific employee or group,” said Terrill, R-Moore. “This is just a fishing expedition based on the presupposition that every state employee is a criminal, crook, thief or wrongdoer just waiting to be discovered by the data miners and privacy pirates on a newspaper’s payroll.”

Terrill is a skilled legislator. Capitol observers will tell you he is one of the most well-prepared lawmakers under the dome, but he finds himself in a tough spot: caught between the media, OPEA and law enforcement.

On one side, Terrill wants credit for filing a bill, HB 3382, to open up DPS dash cam footage. On the other side, he has accused The Oklahoman of manufacturing stories and practicing advocacy journalism.** Of course, one person’s “manufacturing” is another person’s investigation:

Special mailing list deal for Oklahoma Public Employees Association

Oklahoma lawmaker Randy Terrill to return 2010 campaign money

Oklahoma brings in millions by selling personal data

All of the law enforcement agencies appearing at this week’s press conference have their funding controlled at least in part by Terrill’s chairmanship of the House appropriations and budget subcommittee for public safety and judiciary. Negotiations on the budget for FY 2011 are ongoing.

In fact, Commissioner of Public Safety Kevin Ward and Oklahoma State Bureau of Investigation Director DeWade Langley rarely make themselves available to the media. But they were front and center at Tuesday’s press conference.

Later that same day, OSBI held a separate press conference about its homicide clearance rate, but Langley was a no show. Instead, he let OSBI spokeswoman Jessica Brown deal with the questions that have been raised about OSBI’s handling of recent murder investigations. Here’s how the AP put it:

OSBI Director A. DeWade Langley has not responded publicly to criticism of the agency. “That’s why he hired me,” Brown said. “He does his things and I do mine.”

Back to the DOB issue. Can you make an argument that there should be a balance between the public’s right to know and the privacy rights of public employees? Yes. Such a balance exists in the Open Records Act: the Social Security numbers, home addresses and home telephone numbers are already off limits.

In effect, under current law, all public employees in Oklahoma enjoy the same protections as law enforcement personnel in Florida.

Let me repeat that: All public employees in Oklahoma enjoy the same protections as law enforcement personnel in Florida.

It’s a fact of life that we leave a paper trail in most of our public and private transactions. I wonder if  any of the dozen law enforcement agencies represented at Tuesday’s Capitol press conference have personnel policies that limit their employees having telephone numbers in the phone book, buying property, registering to vote or holding driver’s licenses?

The privacy rights of public employees, including those who work in law enforcement, are already fewer than those in the private sector. The names, agency and salary of state employees are readily available on the state’s Open Books site. Under a 2003 law, state employees can be fired for not paying their state income taxes, something that usually won’t get you fired in the private sector. Furthermore, every employee’s employment application is an open record.

Terrill, who has used “personal information” from voter registrations for his political campaigns, has said in interviews those records are different because you voluntarily register to vote. But don’t you also voluntarily become a state employee? There is no indentured servitude in state government.

What we’re talking about here is the difference between public information and confidential/private information. A recent Government Accountability Office report details the differences:

● Public records such as birth and death records, property records, motor vehicle and voter registrations, criminal records, and civil case files.

● Publicly available information not found in public records but nevertheless publicly available through other sources, such as telephone directories, business directories, classified ads or magazines, Internet sites, and other sources accessible by the general public.

● Nonpublic information derived from proprietary or nonpublic sources, such as credit header data, product warranty registrations, and other application information provided to private businesses directly by consumers.

Other states have developed detailed policies regarding the use and reuse of those types of information. In fact, one of the best policies I’ve seen is from neighboring Arkansas. They have a “data matrix” that spells out how governments should deal with personal data. Here’s some examples of what Arkansas deems “very sensitive”:

Social Security numbers

Most home addresses

Attorneys’ files

Comprehensive law enforcement data

Domestic abuse data

Educational records

Foster care data

Health and medical data

Library borrower’s records

Signature imaging data

Welfare records/data

Credit card numbers

Competitive bids

Civil investigative data

Criminal history data

Economic development assistance data

Food assistance programs data

Head Start data

Juvenile delinquent data

Counselors’ data

Trade secrets data

Since the state just hired its first ever chief information officer, maybe one of his tasks could be developing a similar data sensitivity policy here in Oklahoma.

–Paul

(*Full disclosure: I have signed an affidavit in the pending court case in Oklahoma County.)

(**This blog, which began two years ago, occasionally advocates for open records, open government and open data.)

Written by Paul Monies

Follow @pmonies

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