An Oklahoma County district court judge found last week that state agency employee identification numbers are confidential, but held that agencies have the discretion to determine whether employee birth dates are matters of public record.
The Oklahoma Public Employees Association sued the state in March to prevent the release of state employee information that was requested by the Tulsa World and The Oklahoman, said Kevin Donelson, an attorney for the OPEA.
“If you take a birth date and put it with some other identifiable information, it really promotes or increases the opportunity for someone to steal someone’s identity,” he said.
The newspapers argued that the requested information was necessary to verify the identities of public employees involved in their articles.
“The way we utilize, and I think most journalistic organizations, utilize dates of birth is to try to identify,” said Joe Worley, executive director of the Tulsa World. “We keep databases internally to use as a reporting tool for our reporters to find and locate people.”
The court’s decision upheld a 2009 state attorney general opinion that stated that it is up to each employing agency to conduct a balancing test to determine whether releasing the employee’s birth date is an unwarranted invasion of his or her personal privacy.
Worley said that both The Oklahoman and the Tulsa World are working to file an appeal.
"We believe the records are open records as a matter of law and that if there is a balancing test, the balancing of the media’s right to know and right to use date of birth as a news gathering tool is so critical that it overwhelms any privacy interest a state employee might have in keeping their date of birth private or confidential," said Shaad Titus, an attorney for the Tulsa World.
"It is the only way of a newspaper to distinguish between the 30,000 state employees that have the identical name of people who are on the voter registration record in the state of Oklahoma," he continued.
The opinion also stated that the agency should make the determination “without notice and hearing to the employee,” because there is no due process right for the employee under the state’s Open Records Act.
Donelson, however, said that the OPEA believes each employee has a right to be notified if their agency is determining whether to disclose their information and he also stressed a concern about having each agency make a decision independently.
“The problem is that each agency has to make that determination and in this particular case, you end up with a situation where one agency may disclose it and another would not and therefore state employees are being treated differently for no rational basis whatsoever,” he said.
The OPEA plans to appeal that issue to the state Supreme Court.
The Reporters Committee for Freedom of the Press and five other media organizations joined a friend-of-the-court brief filed in the Oklahoma district court, asking the court to find in favor of disclosing the information.