One year later: Attorney General opinion on public employee DOBs still unresolved
It’s been more than a year since outgoing Attorney General Drew Edmondson issued an opinion on the release of public employee birth dates that made the issue anything but clear.
During that time, we’ve had bills filed at the Legislature, open-records requests, bizarre press conferences and a flurry of legal briefs and judicial orders. In the end, we’re not much closer to a resolution than we were in December of last year.
First, a little refresher on why I think it’s important that public employee DOBs remain open under the state’s Open Records Act:
- They are a key identifier to distinguish people with the same first and last name. We used them extensively to verify the backgrounds of candidates for November’s elections.
- The Oklahoma Open Records Act already protects public employees’ privacy by outlawing the release of social security numbers, home addresses and home telephone numbers. The Legislature had a chance to amend the act earlier this year, but chose not to, despite pressure from state employee associations and sympathetic lawmakers.
- Every single registered voter in Oklahoma has their birth date on file in voter registration records that are available to anyone for a fee from the state Election Board.
- The state makes millions of dollars each year from selling information — including DOBs — from the motor vehicle records of every Oklahoma driver to insurance companies and employment screening firms.
- State laws protecting consumers from breaches of sensitive data from the private sector do not include DOBs as part of what’s considered “personal information.”
Now, the legal case over the public employee DOB issue is headed to the Oklahoma Supreme Court after neither side was happy with District Judge Bryan C. Dixon’s ruling in September.
Dixon allowed state agencies to poll their employees over whether workers minded their birth dates being released as part of an open records request. As expected, that’s resulted in a patchwork of agencies that didn’t mind, some that were split and some that objected to the release. Here’s a breakdown, according to a legal filing made earlier this month on behalf of the Office of Personnel Management:
Agencies approving: 21
Agencies opposed: 78
Agencies split: 23
Not responding: 32
Among the agencies that opposed the release of the DOBs was the Oklahoma Educational Television Authority, the state’s public television station. John McCarroll, OETA’s executive director, said the agency asked its 68 employees about the issue a few months ago. Nineteen were opposed, while the rest didn’t mind or did not respond, he said.
“None of our journalistic staff had a problem with it,” McCarroll said. “But we have engineers and clerical workers and all kinds of folks who work with us. It wasn’t from a journalistic side that we had a problem with it.”
McCarroll decided because there was a split that none of the DOBs should be released. He said he didn’t want undue suspicion on the employees who objected.
“Some of them gave a reason, that they had their identity stolen in the past, that there were marital problems,” McCarroll said. “But we didn’t really specifically ask for a reason. By the numbers, we said, ‘Let’s just not do this until we know we have to.’ We’re a news organization ourselves, so we’re not opposed to it, but as an employer we felt like we at least owed it to our staff to let them know. It’s not that we don’t want those birth dates to be released, but we just want to know how it’s going to be used. My thought on it was we’ll handle it on a case-by-case basis.”
McCarroll touched on the main opposition to the release of the DOBs: the risk of identity theft. In fact, that was the argument relied on recently by the Texas Supreme Court in a case involving state employees’ DOBs in Texas.
In a 5-2 decision, the Texas Supreme Court brushed back lower courts and the Texas attorney general when it ruled public employee DOBs should be withheld in the Lone Star State. In 2005, The Dallas Morning News had requested employee salaries, birth dates, race, sex and other standard public employee information from the state’s Comptroller of Public Accounts.
In the majority decision, the court said:
The News responds that it has no interest in disclosing birth dates to the world, but rather would use the information to investigate inappropriate hires or other misadventures the state may commit. We do not doubt that the News would put the information to beneficial use. But if the requested is disclosed to the News, it must be disclosed to any applicant, including those who would employ it for illegitimate purposes.
By that reasoning, then anything that could be used for “illegitimate purposes” should be outlawed. That’s what Justice Dale Wainwright said in a dissenting opinion:
In other words, the harm is not in the disclosure of the birth date, but in the possibility that some evildoer may use a birth date to gain other information (such as a social security number) which he or she then may use to commit identity theft. Never before has the Court held that information is not subject to disclosure under the (Public Information Act) because the information may lead to other information that may be used to cause harm. By that logic, much information of a personal nature would be immune from disclosure — names of public employees, dates of employment, home addresses. This sort of information, taken together with other information, might lead to the employee’s social security number and possibility to identity theft. While the state has outlawed identity theft, and individuals may sue when others misappropriate their private data, the Court should not allow subversion of the open-government policies of the PIA under the risk that some of the public information may later be misused.
For more on the Texas case, check out my former colleague Ryan McNeill’s blog entry at The Dallas Morning News’ Watchdog blog. The paper also had an editorial on the subject last week.
–Paul
P.S. For the record, my birth date is 6/27/75. See if yours appears here or here.
Written by Paul Monies
Follow @pmonies
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