DOB bill compromise attacks spirit of Open Records Act

UPDATE: House leaders decided not to hear the bill on the floor April 22. That means SB 1753 is dead for the year, although lawmakers said they are still working on possible alternate compromise language to be inserted into another bill before the end of the Legislative session. Read Capitol Bureau reporter Michael McNutt’s story.

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A floor amendment to Senate Bill 1753 was posted late Monday night by Rep. Randy Terrill. That means a vote on what Terrill calls compromise language for the disclosure of birth dates of public employees could come by Wednesday or Thursday on the House floor. A previous version of the bill passed unopposed in the Senate in February.

The compromise by Terrill, R-Moore, makes a bad bill worse and turns the whole Oklahoma Open Records Act on its head.

In 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 collect, sell or reuse date of birth information in some way to verify identity.

Terrill’s amendment makes clear that it’s never been about identity theft or protecting public employees in sensitive jobs from potential stalkers and criminals. It’s about the control of information and protecting special interests like the Oklahoma Public Employees Association.

Under the amended language, for the first time ever in Oklahoma, the public would be required to tell a governmental body why it wants records.

In writing.

With an unspecified time line.

The Open Records Act currently presumes that government records are open unless they are specifically exempt. In this Terrill’s scenario, the burden of proof would now lie with the requestor, not with the public body. That is contrary to both the spirit and application of the law.

In my experience, public bodies routinely ignore parts of the Open Records Act they don’t agree with or find troublesome. This could give them another excuse.

If the changes are enacted, it would be a slippery slope for the rest of law to require a requestor to explain why he or she wants to inspect public information. That paternalistic style of “government knows best” would be a blow to transparency efforts everywhere.

–Paul

P.S. Here’s the relevant section of the proposed law that is at issue:

SECTION 1. NEW LAW A new section of law to be codified in the Oklahoma Statutes as Section 24A.7-1 of Title 51, unless there is created a duplication in numbering, reads as follows:

A. No public body shall release to any person or entity the exact date of birth for any employee of the public body.

B. For purposes of the Oklahoma Open Records Act, an employee’s date of birth shall not be subject to disclosure by the public body except for the procedures prescribed by this section for responding to requests to confirm or deny a date of birth with respect to a person identified in a request for verification.

C. A person or entity may request a verification from a public body that a birth date for a specifically identified person whom the requestor reasonably believes to be employed by the public body as of the date of the request is the same as the birth date for such employee as reflected by the employment records of the public body.

D. The requestor shall submit a written request for verification of date of birth to the public body which request shall contain:

1. The complete name of the person whom the requestor reasonably believes to be an employee of the public body as reflected in the information or document relied upon by the person or entity making the verification request;

2. The particularized and specific reason that the requestor is asking for verification of the employee date of birth for each employee included in a verification request; and

3. Any other identifying information related to the information or document in the possession of the requestor that would allow the public body to determine whether or not the person identified in the request is an employee of the public body.

E. For purposes of verification requests submitted by any person or entity and for purposes of responses to such requests by a public body, a person’s status as an employee shall be determined as of the date that the verification request is submitted to the public body.

F. The public body shall have a reasonable period of time from the receipt of a verification request within which to review the request and any document or other information identified in the request to ascertain whether the person named in the verification request is an employee of the public body.

G. If the public body determines that the person identified in the verification request is or may be an employee of the public body, the public body shall respond in writing to the person or entity making the verification request that the date of birth of the employee is the same as the date of birth provided by the requestor with respect to the person identified in the verification request.

H. If the public body determines that the person identified in the verification request is not an employee of the public body, the public body shall respond in writing to the person or entity making the verification request that the date of birth provided by the requestor with respect to the person identified in the verification request does not match the date of birth of any employee of the public body.

I. Within a reasonable period of time after a public body receives a verification request pursuant to this section and prior to the date as of which the public body provides a written response confirming a birth date of one or more of its employees, the public body shall provide written notice to any employee whose date of birth has been the subject of a verification request by a requesting entity of the identity of the requesting entity and the reason provided by the requesting entity for the verification request.

J. Prior to making the written verification to a requesting entity with respect to an employee date of birth, the public body shall notify any employee whose date of birth will be confirmed to a requesting entity that the public body will be providing a confirmation of the date of birth to a requesting entity.

SECTION 2. It being immediately necessary for the preservation of the public peace, health and safety, an emergency is hereby declared to exist, by reason whereof this act shall take effect and be in full force from and after its passage and approval.

Written by Paul Monies

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