Oklahoma high court finds employee birth dates private

The Oklahoma Supreme Court ruled Tuesday that the birth dates of public employees may not be released under the state's open records law after finding that the privacy interests of the employees outweigh the public interest in disclosure in Oklahoma Public Employees Assocation v. State of Oklahoma. The ruling affirms the lower court ruling, which was appealed by both parties.

The Oklahoma Public Employees Association sued the state in March 2010 to prevent the release of state employee information that was requested through the state open records law by the Tulsa World and The Oklahoman.

In September, the Oklahoma County district court held that the release of the information was dependent on a balancing test, where the public interest in disclosure is weighed against the personal privacy rights of the employee. The court held that the agency must conduct the balancing test to determine whether to release the birth dates. Also at issue in the case were employee identification numbers, which the court found to be confidential.

After the lower court's ruling in September, the OPEA and the media parties, intervening defendants in the case, appealed to the state Supreme Court in an expedited process, skipping the intermediate appellate level. The OPEA appealed because it argued birth dates should be exempt from disclosure, without the need to first examine the privacy interests, and the media parties appealed because they argued a balancing test was unnecessary because birth dates should be public.

Doug Dodd, attorney for The Oklahoman, said he is disappointed and frustrated with the opinion. Even with a ruling that the birth dates could be released after a balancing test, "a real fear is that most state agencies will err on the side of confidentiality."

Dodd said that a main point of the court's decision — that its finding was in line with the legislative intent — is flawed. The state legislature specifically chose to not add birth dates to the open record law's list of exemptions. "A law was proposed and didn't pass," Dodd said. The law was introduced after an attorney general's opinion was issued stating birth dates should be closed unless it was determined that the public interest in disclosue outweighed the privacy interests in keeping the information confidential.

The court held that the legislature's "silence [w]as acquiescence or approval of the law as expounded in an Attorney General opinion." Dodd argued the legislature's failure to pass the proposed bill to make the information exempt was an intentional decision to keep the information public.

The court also cited a risk of identity theft as justification to prevent the release of the birth dates and as evidence of the privacy interest inherent in the information. Dodd calls the claim "speculative," as no specific instance of identity theft from this type of information was presented during the course of litigation.

The court held that birth dates and employee identification numbers have significant privacy implications and the public interest stated by the newspapers is minimal. As such, under a balancing test, the information should not be released.

The court's recognition of a privacy right in birth date information goes against agency practice, Dodd said. He noted the regular practice by the Oklahoma Department of Public Safety of selling this type of information to private companies. In April 2010, the Tulsa World reported that the state made more than $65 million in the previous five years from these sales.

"If [the state] can sell the information, why can't the public and press get access to the same information?" Dodd asked.

Contrary to the court's determination that releasing the information "serves no valid public interest," Dodd insisted that releasing the birth dates actually protects private citizens because it enables the papers to make sure the person they are writing about is the public employee in question. There are many people with the same name, and having access to the birth date allows the reporter to double-check the identity of the subject, he said.

The court viewed the public interest as a question of whether the information would shed light on how the government performs its duties and, ultimately, it found birth date information would "reveal little or nothing about an agency's own conduct."