Oklahoma Economy: Tell us your unemployment story
In case you missed it, the story below appeared in Sunday’s Business section. I’ve gotten some good feedback via phone and e-mail from other people in a similar situation, so I created a form* in Google Docs to collect more stories.
If you or someone you know has dealt recently with the Oklahoma Employment Security Commission on an appeal for unemployment compensation, please fill out the form here and tell us your story.
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By PAUL MONIES
Database Editor
pmonies (at) opubco.com
Two minutes and a computer mix up might have cost Debra Carrick $8,500 in unemployment benefits.
A late appeal after Carrick’s former employer challenged her benefits has turned into a yearlong ordeal for the Oklahoma City resident. But she said the real cost is her confidence in a longtime social safety net and the system used to administer it.
“It’s been over a year and not a penny,” Carrick said. “Lot of heartache. What seems like thousands of hours. Some days I take a break from it, but it’s always one more thing.”
Carrick’s case highlights just one of the nearly 200,000 initial unemployment claims filed in 2010, according to the Oklahoma Employment Security Commission. That number has fallen since a 10-year high of 241,000 in 2009, but remains high as the recession continues to take its toll on Oklahomans.
Carrick, 51, has taken her claim through two levels of administrative appeals and into district court in Cleveland County, where the case is pending.
“People have told me, ‘Why don’t you just give it up and put it behind you?’” Carrick said. “But it just makes me mad and want to fight it more.”
Firing facts in dispute
The facts surrounding Carrick’s last day on the job are in dispute, as they are in many appeals for unemployment claims. Carrick worked almost two years as an accounts receivable clerk for Delco Diesel Services in Oklahoma City. She claims she was fired without cause in January 2010 after an argument with her former boss, David Lanham. According to hearing transcripts, Lanham claims Carrick cursed at him and he fired her on the spot.
Debra Carrick
That incident started Carrick’s yearlong effort to claim unemployment benefits. State officials wouldn’t discuss the specifics of her case because it’s pending in court, but called it an outlier. They said federal and state benchmarks for the system try to make the process as quick as possible to help the unemployed.
“If you’re unemployed this week, that unemployment check is going to do you a lot more good in two weeks than it will in eight weeks,” said Karl Jahnke, director of appeals for the Employment Security Commission. “If you’re eligible, it’s meant to replace some lost wages. Eight weeks from now, you may have missed a car payment.”
In the unemployment compensation world, the technical term for a worker who has lost his or her job is a “separation.” The employee must file a claim for unemployment either online or by telephone. If they have worked long enough and earned a minimum amount to qualify, they are mailed a notice of eligibility. Employers then have 10 working days to challenge the circumstances of the separation.
Appeals backlog
Separations are grouped into either voluntary quits or misconduct. If they can show an employee quit in some way, employers win appeals more than 80 percent of the time. But the standard for misconduct in unemployment claims cases is higher for employers. Claimants win those misconduct cases more than 60 percent of the time, according to Employment Security Commission data.
Until the recession hit, Jahnke said more than 98 percent of the appeals filed were cleared within 45 days.
“We haven’t been able to do that since 2009,” Jahnke said. “We just got run over, and we’ve been playing catch up ever since.”
Last year, Jahnke’s division heard almost 20,000 appeals, double the number it heard in 2008. The appeals division has gone from nine full-time hearing officers in 2008 to 14 in 2010. Jahnke said an ideal staffing number for the division would be 18 hearing officers.
The administrative hearing process is a little less formal than a courtroom, Jahnke said. Hearing officers, who average about 1,000 cases a year, oftentimes have to be both hand-holder and explainer for those unfamiliar with the system.
“We try to maintain basic due process and fairness so that it runs quickly and there’s not many technical trip-ups,” Jahnke said. “It’s kind of like a little court. It is a formal proceeding. We talk to each other nicely. But this is not ‘Judge Judy.’ There’s no yelling allowed.
“There’s also simply pride involved. We as a society are kind of contentious: ‘You’re not going to tell me I’m wrong.’ People will stand on principle, too: ‘You’re telling me I can’t fire that person?’ ‘No, I’m only saying we can’t deny them benefits.’”
First-time filers
For Carrick, a single mother who used to run several aviation-related small businesses, filing a claim was a last resort.
“My first thought was, ‘There’s no way I’m going to file for unemployment, that’s for losers. I’m just going to get me a job,’” Carrick said. “But then I saw (national) unemployment at 10 percent and I said, ‘It probably wouldn’t hurt to go down there, even if I only use it for a couple of weeks.’ Couple of weeks. That sounds funny now.”
Carrick, who had never filed for unemployment benefits before, said the system is daunting for first-timers. Long wait times on the telephone and problems with the online system compounded her frustration. The web-based system requires Microsoft’s Internet Explorer browsers and won’t process claims filed through other browsers such as Mozilla’s Firefox or Apple’s Safari.
John Carpenter, a spokesman for the agency, said it is upgrading its online claim system to reflect the range of browser options.
The Employment Security Commission’s call center handled more than 849,000 calls in 2010. The average wait time for an initial claim was a little more than 2 minutes. But the average wait time for follow-up calls fluctuated each month from a low of 19 minutes to a high of 47 minutes.
Claim denied
Carrick’s initial unemployment claim was denied because Delco Diesel provided a notarized statement by an employee who said he witnessed the confrontation between Carrick and Lanham. The claims analyst said that was enough to establish misconduct.
Carrick, however, said she had never before been written up or disciplined at her job. She also said the statement was notarized by Lanham’s daughter. It’s not illegal for family members to notarize documents, but the secretary of state’s office advises against it if the documents become part of a court case. The Delco Diesel employee who witnessed the confrontation, Dwight Daniel, told The Oklahoman he stands behind his statement, but declined further comment.
Both employers and claimants have 10 days to file an appeal if they aren’t happy with the claims analyst’s decision. Carrick filed her appeal via e-mail at 12:02 a.m. March 2, 2010, two minutes after the deadline.
Carrick said a range of issues kept her from filing the appeal until the last minute. With no income, she tried to get law students at the University of Oklahoma’s law clinic to take her case. They referred her to Legal Aid, which took the case but dropped it days later because of a heavy case volume. Carrick said she also encountered delays when filing for food stamps and in arranging financial aid to take business and computer classes at Oklahoma City Community College.
To Carrick, those two minutes have loomed large in the past year. If the appeals hearing officer wasn’t so strict about that deadline, Carrick said she could have better challenged Delco Diesel’s account of the day of her firing. Carrick appealed the hearing officer’s decision to the Board of Review, a separate panel made up of three people appointed by the governor.
“Considering this and the huge obstacles and impediments that came my way the entire last week of February 2010, I believe I have shown good cause for being two minutes tardy in responding to the false and defamatory allegations of Delco Diesel Services Inc., and that I was indeed laid off,” Carrick wrote in her appeal to the Board of Review in April.
‘Knee-jerk’ decision
The Board of Review affirmed the hearing officer’s decision in May. Acting as her own attorney, Carrick then took her case to Cleveland County District Court. After several more months, District Judge Tom A. Lucas ruled against the Employment Security Commission and the Board of Review.
According to a transcript of the ruling, Lucas said the Board of Review took a “knee-jerk” look at Carrick’s appeal that was filed two minutes late. He said even the legal system has some leeway.
“You know, we have lawyers down here at 5 (p.m.) knocking on the door, getting the clerk to let them in,” Lucas said. “If the clerk lets them in, they get it filed; and if the clerk doesn’t let them in, they don’t get it filed, and that counts. So I don’t know.”
The Employment Security Commission’s attorney, Teresa Keller, appealed the judge’s ruling, which was limited to the timeliness issue. It was not on the facts of Carrick’s firing. The next district court hearing is set for March.
For Delco Diesel’s part, Lanham would only say: “I believe OESC is a very competent group and I think they made the right decision.” He referred other questions to his attorney, Greg James.
James said Carrick’s appeals at the administrative level and in district court have been consistently late. He said Carrick had gone through what he called “on-the-spot” counseling for her behavior previously at Delco Diesel.
“It rose that day with the insubordination in the customer areas to a firing offense,” James said. “She’s got quite a mouth on her. I’ll just leave it at that. She was well-aware of the standards expected of her in the workplace.”
Carrick countered James’ assertion that she was disciplined: “If there are disciplinary records, I want to see them. It absolutely never happened.”
Meanwhile, Carrick said her yearlong experience with the Employment Security Commission makes it hard to believe she’s fighting for just $8,500 in unemployment compensation.
“I wonder how many taxpayer dollars are being spent to fight this case?” Carrick asked.
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*Hat tip to ProPublica for the idea.
An early look at transparency bills in the 2011 Oklahoma Legislature
The bill filing deadline for the Legislature was last week, so those who follow state government are wading through the more than 2,000 bills or resolutions filed. The session kicks off at noon Feb. 7.
As is the case every session, expect these initial bills to be changed significantly along the way. Some will die after not being heard in committee. The language in some will magically reappear later in the session under another bill number, sometimes by another member. It’s like a giant game of Whac-A-Mole.
Here’s a few I’ve got my eye on, with a hat tip to Mark Thomas at the Oklahoma Press Association. He briefed members of Freedom of Information Oklahoma Inc. over the weekend.***
If you know of any that should be added to the list, drop me a line in the comments section below.
Click on the bill number for the full text
Subject: Records of county officers
Author: Sanders
Summary: This takes some authority away from county clerks and puts each county office holder in charge of destroying records after a period of time.
Subject: Electric Utility Data Protection Act
Author: Sears
Summary: Regulates data disclosures from those new electric “Smart Meters” that are popping up all across the state.
Subject: Public bodies
Author: Murphey
Summary: Would make the Legislature subject to the Oklahoma Open Records and Open Meetings Act. It adds an exception to the law for correspondence between lawmakers and constituents (but not correspondence between lawmakers and lobbyists). See the FOI Oklahoma blog for more.
Subject: Public bodies
Author: Renegar
Summary: This is similar in scope to HB 1085 above.
Subject: School district information online
Author: Brumbaugh
Summary: This would add more information to the School District Transparency Act, which passed last year and puts certain financial information of school districts on a website. The site is supposed to be up and running by the end of this month.
Brumbaugh’s bill would expand the disclosure to “direct and indirect costs” of education, including contributions to the Teachers Retirement System. It also directs the state Department of Education to create “benchmarks” to compare the costs of private and public education.
Subject: First responders and recording devices
Author: Shelton
Summary: This would make it a crime for first responders such as police, ambulance drivers and paramedics to take video or pictures at an accident scene and post them to public websites or send them to other people. It appears this is in response to the scuffle caught on tape a few years ago between a paramedic and a trooper.
Subject: Exemption to attorney-client privilege
Author: Jordan
Summary: This would take out an exemption for attorney-client communications if they are between a public official or agency and its attorney.
Subject: Alcoholic Beverage Laws Enforcement Commission
Author: Fourkiller
Summary: Adds the Oklahoma Alcoholic Beverage Laws Enforcement Commission to a list of other law-enforcement agencies whose information or evidence are not public if used by the Oklahoma Tax Commission.
Subject: Open Books
Author: Sean Roberts
Summary: Adds to the information on the state’s Open Books website by amending the Taxpayer Transparency Act. It would require each agency to provide a “line-item expense report” of all spending.
The bill also amends state law to prohibit elected agency directors from giving raises to employees in the period from just before an election until swearing-in day. It would appear to outlaw the raises that went on in the “lame-duck” period for departing agency heads that I wrote about in December.
Subject: Lobbyists
Author: Blackwell
Summary: Requires public employees who lobby for state agencies to register as lobbyists with the state Ethics Commission. Currently, agency lobbyists are exempt from registration requirements.
Subject: Public records
Author: Jackson
Summary: Adds a section to the Open Records Act that expressly stops government entities from asking requesters to fill out forms to request records. It also prohibits government from asking the purpose of a request or requiring a name of the requester.
Subject: Public records
Author: Reynolds
Summary: Adds a time period to the Open Records Act. Currently, public bodies must provide “prompt, reasonable access” to records. This bill would set up 30-day and 60-day deadlines. It sounds good in theory, but in my experience, many agencies or governments would want to use that entire 30-day period to respond.
The bill also expands the Open Records Act to cover private contractors who do business with the state. Another section of the bill requires that “convenience fees” assessed for online services go to the state agency to recover costs before they go to the private contractor providing the online website. This would appear to hit the state’s website operator, NIC Inc.
Subject: Public records; DPS audio/video recordings
Author: Terrill
Summary: This would add public employee birth dates and employee ID numbers to the list of exempt information under the Open Records Act. Terrill tried–and failed–several times last year to get this passed. He had lots of support from employee associations such as the Oklahoma Public Employee Association and the Oklahoma State Troopers Association. This is the subject of a pending Oklahoma Supreme Court case.
The bill would also set up a fee schedule for dash-cam videos and other records from the state Department of Public Safety.
Joey Senat, associate professor of journalism at Oklahoma State University, has more on this bill over at the FOI Oklahoma Blog.
Subject: N/A
Author: Terrill
Summary: This is a shell bill called “The Oklahoma Sunshine Act of 2011.” There’s no other information in it right now other than an effective date of Nov. 1, 2011.
Subject: Oklahoma Public Events Network
Author: Jolley (Murphey in the House)
Summary: Directs the state’s public television network, OETA, to develop a C-SPAN-like network called the Oklahoma Public Events Network. The bill does not provide a funding source.
Subject: County assessor fees
Author: Justice
Summary: Would allow the state Board of Equalization to set up a fee schedule for copies of Geographic Information System files or other electronic records prepared and maintained by county assessors. This has been a subject of several lawsuits in the last few years. The charges for such data vary widely among county assessors in Oklahoma.
Property owners would not be charged for records relating to their own property. The revenue from the fees would go back to each county assessor.
Subject: District Attorney records
Author: Justice
Summary: Would give district attorneys the authority to destroy files and evidence of investigations after a certain period of time. Current law allows DAs to destroy records on actual cases after a set period of time. This bill would expand that to records of an investigation.
Subject: Economic development
Author: Burrage
Summary: Adds the State Regents for Higher Education and state colleges and universities to an expanding list of agencies that are allowed to keep records confidential that pertain to “economic development.” Among the agencies already enjoying this exemption are the Commerce Department, CareerTech and the Oklahoma Film and Music Office.
Subject: Open records
Author: Anderson
Summary: This is similar to HB 1941 described above in that it prevents government from requiring the public to fill out specific forms or identify themselves in records requests.
Subject: Open Meetings
Author: Ford
Summary: Adds a new category to the Open Meetings Act called a “limited-support body.” It defines that as a unit that receives less than 15 percent of its funding from public funds. It exempts such “limited-support bodies” from the Open Meetings Act under certain circumstances and also allows them to conduct meetings via teleconference.
Subject: Court records
Author: Sykes
Summary: Prevents courts from sealing divorce records or other marriage and family records under Title 43, including child custody records. Those records could remain sealed if they are required by the Oklahoma Constitution or another statute.
Subject: Attorneys
Author: Sykes
Summary: Creates the “Private Attorney Retention Sunshine Act.” It would require state agencies to put out bid notices on their websites if they want to hire private attorneys for legal work that costs more than $5,000. For legal work expected to cost more than $500,000, more information has to filed with the governor’s office.
My former colleague Julie Bisbee and I wrote about this issue in 2009. Previous bills on the subject have not survived.
Subject: DPS records
Author: Nichols
Summary: Allows the Department of Public Safety to destroy records that have already been copied onto microfilm or scanned into a computer system.
–Paul
***Full disclosure: I am a board member of FOI Oklahoma Inc.
| Electric Utility Data Protection Act |
| Electric Utility Data Protection Act |
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.
Oklahoma County judge issues ruling in public employee DOB case
The issue over whether state agencies can and should release the birth dates of public employees has been partially resolved by an Oklahoma County district judge.
In a summary judgment issued this afternoon, District Judge Bryan C. Dixon told state agencies to continue a process outlined last year by the attorney general. In effect, each state agency is supposed to determine whether releasing its employees’ birth dates constitutes an “unwarranted invasion of personal privacy.”
You can read Judge Dixon’s order here.
We are still digesting the order, but it looks like it’s not a clear win for any of the parties. Any appeals to the state Supreme Court are due in about a month.
First, some quick background: The case started with an Open Records request back in February by The Oklahoman for all names, job titles, employee identification numbers, hire dates, birth dates and salary information for all state employees. The request came as the Legislature was contemplating closing off some of that information.
The newspaper wanted the information to check the backgrounds of state employees. The birth date is a key secondary identifier if employees have similar names. Meanwhile, employee ID numbers are useful in tracking public employees if they get married, change jobs or change their names.
The Oklahoma Public Employees Association, joined by an association of state troopers, filed a lawsuit to block the release of the birth dates and employee IDs. Other groups later joined the lawsuit, including the Tulsa World, other media groups and state agencies.
Today’s ruling
In today’s ruling, Dixon said that employee ID numbers are not subject to disclosure by any state agency. In effect, he agreed with arguments put forth by the Office of Personnel Management and the Office of State Finance that knowing those could compromise the security of the state’s Employee Self-Service system for managing payroll information. The employee ID is used as the login for that system.
As our attorneys pointed out, this is despite the fact that we have been getting more than 36,000 employee ID numbers along with our regular monthly state payroll files since at least 2007. We stopped getting them in March. In his ruling, Dixon did not cite any specific statute limiting access to the employee ID numbers.
On birth dates, Dixon said state employees did not have any rights to individually challenge the disclosure of DOBs by state agencies on privacy grounds. That leaves the decision on disclosure to the heads of each state agency. The judge gave the agencies 60 days to make that decision. (The Attorney General’s office already provided a list of its employees’ birth dates to The Oklahoman back in March, before the OPEA and the troopers association filed their lawsuit.)
Finally, Dixon ruled that legislative personnel records are exempt from the Open Records Act. He ordered OSF and OPM not disclose “any records and personnel records concerning Legislative staff.”
This last point is confusing to me on several levels. First of all, does that mean the state should immediately stop putting salary information of legislative staffers on the Open Books site maintained by the Office of State Finance? Secondly, don’t taxpayers have a right to see who is working for their elected officials down at the Capitol?
–Paul
“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.)
Technology and the OK Supreme Court
A recent ruling by the Oklahoma Supreme Court illustrates a common complaint of government agencies and bureaucracies, namely that they haven’t kept up with the expansion of technology.
The court ruled earlier this month that any requests for bulk electronic court case data–basically large downloads or exports of court record information–was now off limits. (Read my story here; the Tulsa World’s story is here. For more on the idea of bulk data downloads from government, check out Web guru Tim O’Reilly’s blog.)
Over the last few decades, Oklahoma county district court clerks have moved their case management systems from paper files to electronic formats. But there are two separate systems, the state-run Oklahoma State Courts Network and the privately run On Demand Court Records. They’ve each evolved over time in response to the needs of district court clerks across the state. There are 13 district courts–including the state’s two largest counties–covered by OSCN; 64 district courts have signed up with ODCR, which is operated by KellPro Inc. of Duncan.
The Oklahoma Supreme Court ruling followed an open records request earlier this year by an Edmond-based firm, INAD Data Services LLC. The company requested electronic copies of all court case information for state district courts and the Oklahoma Workers’ Compensation Court.
The request appeared to have caught Supreme Court administrators off guard. They responded to INAD’s attorney with a letter in late July. The letter said some court information was confidential under state and federal law. It also said the Supreme Court would be asking the Attorney General’s office for advice. The Supreme Court Administrative Office’s general counsel, Debra Charles, said:
If I am satisfied that all or a portion of the records on OSCN.net can be released in bulk, you should anticipate paying a reasonable fee to search and reproduce all of the public records that can be appropriately segregated for public view. Please understand that, if the electronic records can be reasonably segregated, the cost of a system-wide search of this nature will likely be significant.
We’re still trying to figure out what happened in between that letter and the Supreme Court’s ruling Oct. 8 to forbid release of bulk records. But Oklahoma Chief Justice James Edmondson (the brother of Attorney General Drew Edmondson), sent a letter to INAD’s attorney and state Rep. Mike Reynolds, R-Oklahoma City, dated Oct. 5. The letter, which was effectively a denial of the open records request, stated:
… Copies of all information, documents and electronic court records would encompass cases dating back to 1984 in Oklahoma and Tulsa counties. During the intervening 25 years, the other 75 counties have moved to digital record keeping. This literally amounts to millions of pages.
In summary, everything you have requested can be readily accessed through oscn.net or is available on a case-by-case basis at any court clerk’s office in each of the courthouses in Oklahoma. We direct you to oscn.net for full and complete open access to court information.
Later that week, justices issued their ruling.
Justice Edmondson said Tuesday that the ruling was intended to cover only commercial requesters of bulk court data. Other requests, such as those made by noncommercial entities or the media, would be decided on a case-by-case basis, he said. But that’s not explicitly stated in the ruling.
Furthermore, Edmondson said the court signed a contract with KellPro to convert ODCR court case data in preparation for a single, unified Web site of district court information. The contract authorizes the court to spend up to $1.15 million this fiscal year for the data conversion.
Tim Keller, the founder of KellPro, said the contract covers only the data conversion. He expects the Supreme Court will put the work of the unified system out to a competitive bid once the data conversion is finished. In the meantime, KellPro is selling expanded access to court information to members of the Oklahoma Bar Association.
Since hearing about the Supreme Court’s ruling late Monday, I’ve had several conversations with attorney Doug Wilson of Stillwater, who specializes in electronic government information and data. Wilson said the ruling could raise constitutional issues, including one that forbids the state from granting a preference to one company over another.
To play devil’s advocate, I can see why KellPro would like to protect its system of court information. After all, the company’s employees spent time, energy and money pursuing case management system contracts with district court clerks across the state. For a company to come after the fact and request bulk information from their systems doesn’t seem fair.
However, the information isn’t KellPro’s in the first place. They developed the system and software, but the “ownership” stake of the records themselves lies with the people of Oklahoma, whose tax dollars fund the state’s legal system.
It’s interesting to note that this isn’t the first time the Supreme Court has gotten involved in Web access to court documents. In response to privacy concerns, the court issued a ruling last year that would have stopped online access to court filings across the state. They rescinded that ruling after complaints from the public, the media and open-records advocates.
–Paul
Finding the needle in the haystack
In case you missed it over the long holiday weekend, we had a story in Friday’s paper about taxpayer money being used to settle a legal case involving the state Labor Department.
The point of the story wasn’t so much the amount of the settlement (which was still fairly hefty at $200,000) as it was about these kinds of out-of-court settlements taking place outside of the public eye.
My colleague, Nolan Clay, covered the original story back in May. The parties settled a week before the case was set to go to trial in federal court. But neither side disclosed the amount the state–taxpayers, actually–had to pay the plaintiff, citing “confidentiality agreements.”
One of my duties as Database Editor is to maintain the internal databases we use to supplement our reporting. Each month, I download hundreds of thousands of state financial records from the Office of State Finance under a longstanding Open Records request. Included in those records is a database of all the warrants, or checks, that state agencies send to vendors and other parties.
Some of these vendor payments show up on the state’s Open Books site. But the level of detail isn’t always enough to track exactly why these payments are made. So when we started trying to find out the Labor Dept. legal settlement, we turned to our own data download.
As an example, here’s what a typical warrant search yields:
In this case, I found a $100,000 payment in May from the state Labor Department to the Department of Central Services, whose Risk Management division pays most legal claims for the state. That $100,000 payment was the Labor Department’s highest of the 2009 fiscal year and was suspiciously round, unlike most of the warrants that I come across. Using another search, I then found the $200,000 payment going out in May from the Department of Central Services to the plaintiff in the case, Laurie Allen, and her attorneys.
But I still needed more confirmation of the actual amount and which agency paid for what share of the settlement. Using the information culled from the warrants database, I called up both the Department of Central Services and the Office of State Finance and requested paper copies of the checks and their associated invoices. The attorneys still weren’t talking, but we had enough to show how much Oklahoma taxpayers were on the hook for in the legal settlement.
–Paul
