My colleague Carrie Coppernoll had an interesting story today on upcoming changes to the state’s prescription drug monitoring database, which is administered by the Oklahoma Bureau of Narcotics and Dangerous Drugs Control.
Lawmakers have expanded the prescription drug monitoring program since it came into service in 2006. It now monitors several types of prescription painkillers, too:
In 2006, the state narcotics bureau pumped up its Prescription Monitoring Program.
Before, doctors only had to report Schedule II controlled substances, such as morphine and OxyContin. Starting July 1 of that year, doctors had to report Schedules II, III, IV and V, which included a variety of drugs, from Valium to Xanax.
The latest expansion compels pharmacists to submit prescription information for certain drugs in real time by Jan. 1, 2012. Currently, they have to submit the information within 24 hours.
Law enforcement officials say the changes will help catch illicit users of prescription drugs and help prevention. Here’s what Darrell Weaver, director of the OBNDD, told Coppernoll:
“Prescription drugs are killing more Oklahomans than any illicit drugs,” Weaver said. “We simply cannot arrest our way out of this.”
Senate Bill 1159, by Republicans Sen. Anthony Sykes and Rep. Randy Terrill, expanded the information collected under the PMP program to include the address and date of birth of patients getting a prescription for certain classes of drugs.
Here’s what the PMP program collects on each prescription, according to Oklahoma law and the administrative rules of OBNDD:
A. Section 2-309C. A. A dispenser of a Schedule II, III, IV or V controlled dangerous substance, except Schedule V substances that contain any detectable quantity of pseudoephedrine, its salts or optical isomers, or salts of optical isomers shall transmit to a central repository designated by the Oklahoma Bureau of Narcotics and Dangerous Drugs Control using the American Society for Automation in Pharmacy’s (ASAP) Telecommunications Format for Controlled Substances version designated in rules by the Oklahoma Bureau of Narcotics and Dangerous Drugs Control, the following information for each dispensation:
1. Recipient’s name;
2. Recipient’s address;
3. Recipient’s date of birth;
4. Recipient’s identification number;
5. National Drug Code number of the substance dispensed;
6. Date of the dispensation;
7. Quantity of the substance dispensed;
8. Prescriber’s United States Drug Enforcement Agency registration number; and
9. Dispenser’s registration number; and
10. Other information as required by administrative rule.
B. The information required by this section shall be transmitted:
1. In a format or other media designated acceptable by the Oklahoma Bureau of Narcotics and Dangerous Drugs Control; and
2. Within twenty-four (24) hours of the time that the substance is dispensed. Beginning January 1, 2012, all information shall be submitted on a real-time log.
First off, let’s get some disclosures out of the way:
My birth date is 6/27/75. I’m a board member for FOI Oklahoma Inc. I signed several sworn affidavits in the court case pursued by The Oklahoman and other media outlets on gaining access to the birth dates and employee ID numbers of state employees for identity verification purposes and for background checks. I was involved in writing articles about the issue last year and this year for my employer.
The Oklahoma Public Employees Association and its legislative backers, including Rep. Randy Terrill, R-Moore, are claiming victory and vindication from Tuesday’s Oklahoma Supreme Court ruling in their favor.
You can hear Terrill’s interview about the decision at radio station KTOK. Here’s part of what he said:
I’m the guy who attempted to negotiate the compromise legislation that would have satisfied the interests of everybody concerned. I’m talking about the public employees as well as the interests of the newspapers. Mark Thomas with the Oklahoma Press Association said the Daily Oklahoman and the Tulsa World folks were putting pressure on him that he could not accept that compromise. That’s the reason they took the all-or-nothing approach that they did, and as a result of that, they ended up with nothing, and I’ll tell you what, that is truly unfortunate.
I’m not privy to the discussions Terrill had with Thomas during the 2010 session. All I know is that Terrill’s compromise language would have added a multitude of hurdles to the Open Records Act for the public and the press. When his proposed compromise didn’t make it to the House floor, he tried to make some legislative changes to the Open Records Act in the final days of the session by tacking them onto an omnibus Corrections bill. Those also were not successful.
Meanwhile, here’s what Terrill told reporters from The Oklahoman in a wide-ranging, on-the-record 90-minute interview at the Capitol in March 2010, days before the OPEA filed suit to block the Open Records request for public employee birth dates:
Randy Terrill: Does the public have a right to know? The answer is, in some cases, the public does have a right to know; in other cases, they do not.
Paul Monies: Who makes that determination? You? State agencies? The media? The state troopers association? OPEA? Who makes that final determination?
Randy Terrill: The questions of public policy are resolved by this body. That’s why you’re here interviewing me.
Now, more than a year later and after his legislative changes were rejected by his colleagues, Terrill seems comfortable with the Oklahoma Supreme Court resolving this question of public policy. As the dissent by Justice Yvonne Kauger and Chief Justice Steven Taylor makes clear, they believe the Legislature should be making those decisions on public policy:
This is a matter of statutory construction. The statute involved is the human resources statute within the Open Records Act. Although the Legislature has amended 51 O.S. supp. 2005 §24A.7 three times since its inception in 1985, it has never chosen to include the date of birth. If the Legislature desires to do so, it certainly can.
Related DataWatch posts:
- One year later: Attorney General opinion on public employee DOBs still unresolved
- Oklahoma brings in millions by selling DOBs of drivers, voters
- Special mailing list deal for Oklahoma Public Employees Association
- ‘Privacy pirates’ and the politics of fear
- How many state employees are sex offenders?
In a case that stretched almost 18 months, the Oklahoma Supreme Court ruled today in favor of several state employee groups on the birth date issue. For background stories by The Oklahoman, check our continuing coverage page.
Also, I blogged about this issue at the end of last year.
We’ll have more on this, but in the meantime, here’s the court’s ruling:
Re-posting today’s story:
By PAUL MONIES
A pending case before the Oklahoma Supreme Court about the disclosure of state employee birth dates has led to little enthusiasm at the Legislature to add employee exemptions to the Open Records Act.
Rep. Randy Terrill, R-Moore, sponsored legislation for the second year in a row to exempt the birth dates and employee identification numbers of public employees from the Open Records Act. His latest measure, House Bill 2097, did not make it out of a House committee.
Terrill’s legislative assistant said Wednesday a limit on introduced bills this year meant HB 2097 was not one of the eight bills Terrill pursued. Terrill tried and failed several times last year to amend the Open Records Act to make similar changes.
Other groups involved in the fight last year are taking a wait-and-see attitude on legislation until the Supreme Court rules, including the Oklahoma Public Employees Association and the Oklahoma Press Association. They were on opposite sides of the issue.
A spokesman for House Speaker Kris Steele, R-Shawnee, said Steele had some transparency concerns about adding exemptions for public employee birth dates. Steele doesn’t expect other bills on the issue to come up this session, he said.
In February 2010, The Oklahoman made an open records request to the Office of Personnel Management for basic information, including name, salary, title, birth dates and employee identification numbers for all state employees.
- Related: One year later: Attorney General opinion on public employee DOBs still unresolved
- Related: Oklahoma County judge issues ruling in public employee DOB case
The newspaper made the request in an effort to check the backgrounds of public employees. Without a secondary identifier like a birth date, it’s almost impossible to distinguish between people with common names in court records or other public documents.
The request followed an opinion from former Attorney General Drew Edmondson that allowed public bodies to decide on a case-by-case basis if the disclosure of birth dates of public employees constituted a “clearly unwarranted invasion of personal privacy.”
The newspaper’s open records request set off protests and lawsuits from some state employees and public employee groups, who feared the release of their birth dates would lead to identity theft. Some in public safety positions feared retaliation by convicted criminals.
The Open Records Act has several exemptions to protect public employee privacy, including limits on the disclosure of Social Security numbers, home addresses and home telephone numbers.
The birth dates and home addresses of 2 million registered voters in Oklahoma are available for a fee from the state Election Board.
Not all state employees are registered voters.
The state’s Open Books website also has limited payroll information for employees of state agencies and higher education.
In January, the Supreme Court extended an order by Oklahoma County District Judge Bryan C. Dixon that stops several state agencies from disclosing the birth dates and employee identification numbers of public employees. That order is in effect while the case is pending before the Supreme Court.
Mike Minnis, attorney for The Oklahoman, said the court may order oral arguments or issue an opinion on the case. The time frame for those outcomes is unclear.
The newspaper’s case attracted support from other media and government transparency groups, including Griffin Television, the Reporters Committee for Freedom of the Press and FOI Oklahoma Inc. The Tulsa World filed its own records request for similar state employee information and intervened in a lawsuit brought by several employee associations.
Last year, The Oklahoman used birth dates to check the backgrounds of many candidates in November’s elections. Tax liens, bankruptcies, lawsuits and criminal charges were among the information uncovered.
Full disclosure: I signed an affidavit in support of The Oklahoman‘s lawsuit and I’m a board member for FOI Oklahoma Inc.
P.S. My birth date is 6/27/75.
Just in time for Sunshine Week, it looks like the U.S. Department of Justice has rolled out a new website with information on the federal Freedom of Information Act, commonly called FOIA.
It looks like a pretty slick and easy-to-use site. But all the pretty websites don’t make up for the decisions made by federal officials when it comes to government transparency and openness. The Associated Press reports on the Obama administration’s progress on that front, and the results are mixed:
AP’s analysis showed that the odds a government agency would search its filing cabinets and turn over copies of documents, e-mails, videos or other requested materials depended mostly on which agency produced them – and on a person’s patience. Willingness to wait – and then wait some more – was a virtue.
Also, don’t forget to check out our own special page for Sunshine Week. You’ll find our latest stories on open government and transparency efforts at the state and local level:
If you’re interested in government transparency, come out to the annual FOI Oklahoma Inc.** Sunshine Conference on Saturday, March 12. The event is from 8:30 a.m to 3:30 p.m. at The Oklahoman, 9000 Broadway Extension, Oklahoma City.
The conference will kick off Sunshine Week, a national initiative to promote openness in government and empower the right to know among the people.
This year’s theme is “Putting Muscle Behind Oklahoma’s FOI Laws.” Registration is $35, but there are special rates for students and current FOI Oklahoma members. Check out a PDF of the schedule.
[Update: There also will be a silent auction, the proceeds of which will benefit FOI Oklahoma's Sunshine Fund. The organization used its first grant from that fund to help defray the costs of an Open Meetings Act lawsuit filed by citizen activists. Among the items up for bidding are an evening in an Oklahoma RedHawks suite at the Bricktown Ballpark; a one-night stay at the Colcord Hotel, among others. More items here. ]
The following is from Joey Senat, associate professor of journalism at Oklahoma State University and a former president of FOI Oklahoma:
The conference’s keynote speaker is a national Open Government Hall of Fame inductee, who will offer advice on creating a state agency that Oklahomans can go to for help when officials wrongly withhold records or restrict access to open meetings.
As executive director for the nation’s first-such state agency, Robert J. “Bob” Freeman is responsible for providing advice about New York’s open records and meeting laws to the public, state and local governments, and the media.
Freeman’s keynote address also will offer advice on making Oklahoma’s open government laws work for the public.
Other sessions include:
- A state representative [Rep. Jason Murphey] discussing bills requiring the Legislature to comply with Oklahoma’s Open Meeting and Records laws;
- A panel of local heroes who have gone to court seeking information under the Open Records Act and challenging the conduct of public bodies under the Open Meeting Act; and
- Experts explaining how to use the Open Records Act to request records and to spot the most-likely violations of the Open Meeting Act.
The luncheon will include a tribute to former Oklahoma Supreme Court Justice Marian Opala. Recipients of FOI Oklahoma Inc.’s annual Marian Opala First Amendment Award and three freedom-of-information awards will be recognized, as will the winners of its first FOI essay contest for college students.
Please support open government in Oklahoma by attending this conference. More people equal a bigger message to those in government who ignore our state’s Open Records and Open Meeting laws.
**Full disclosure: I am a board member of FOI Oklahoma Inc. I’ll also be speaking on one of the panels.
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.
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
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
Summary: Regulates data disclosures from those new electric “Smart Meters” that are popping up all across the state.
Subject: Public bodies
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
Summary: This is similar in scope to HB 1085 above.
Subject: School district information online
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
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
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
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.
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
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
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
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.
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
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
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
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
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
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
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.
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
Summary: Allows the Department of Public Safety to destroy records that have already been copied onto microfilm or scanned into a computer system.
***Full disclosure: I am a board member of FOI Oklahoma Inc.
It’s often said that state legislatures are the laboratories of democracy, but here’s hoping this idea stays in the Mad Scientist lab.
The Richmond Times-Dispatch reports that a state lawmaker has filed a bill in the Virginia General Assembly that would exempt the names of public employees in any type of payroll data.
Senate Bill 812 was filed by Sen. Stephen Martin, a Republican from Chesterfield, Va. From the newspaper’s story:
“In my judgment, it’s not necessary for the public to know who makes exactly what,” Martin said by phone Tuesday.
Martin said the bill was introduced in response to a state salary database that the Richmond Times-Dispatch published online in October. The database included the names of employees earning above the average salary of $50,298.
“Constituents of mine that were concerned about it asked me to introduce this legislation,” said Martin, adding that “they were probably state employees or family of state employees.”
Martin’s bill would allow only the salary and job title to be provided in any payroll information on state employees or elected officials:
Virginia Freedom of Information Act; access to salary information, etc., of public employees.
Allows public access to the records of only the job position, official salary, or rate of pay of, and the allowances or reimbursements for expenses paid to, any officer, official, or employee of a public body. The bill specifically excludes the name of any such officer, official, or employee from disclosure.
Here in Oklahoma, we’ve been involved in trying to keep access to certain information about state employees. But at least nobody has proposed anything like Martin’s bill. At least not yet.
And just FYI, you can search the state payroll at the state’s Open Books site. Unfortunately, the state site includes just last name and first and middle initial. It doesn’t have job titles.
For almost 20 years, we’ve gotten monthly downloads of state employee payroll data from the Office of State Finance under a continuous open-records request. The data in the last few years has included first and middle names, as well as job titles and whether the employee is covered under the state’s merit protection system. That kind of information was invaluable when we looked at pay raises in some departments last month:
- Pay raises come for some at Oklahoma’s state agencies
- Almost half of Agriculture Department employees receive raises
It’s that time of year, when we in the news business run endless lists and end-of-year wrap-ups. I’m jumping on the bandwagon, so here goes:
Thanks for reading, and have a Happy New Year!
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.”
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.