Oklahoma City is the latest government agency refusing to release employee birth dates, despite arguments they are open records under state law. Open government advocates say birth dates are on the front lines of the national battle for open records partially because of fears over identity theft. Those fears aren’t backed up with statistics or even anecdotal evidence showing public records are a source for identity thieves, experts said. The city denied a request from The Oklahoman last week for the birth date of Ed Martin, director of the city’s Weed and Seed program. Martin was placed on administrative leave after police began looking into possible problems with the management of federal grant funds in the program. Weed and Seed is a federal program allowing cities to get grant money to increase police enforcement in high crime areas and offer social programs to build up the neighborhoods in those areas.
Why is city guarding information?City officials claim birth dates qualify under two exceptions in the Oklahoma Open Records Act. The first prevents the release of "personal information within driver records,” and the second allows governments to keep records secret when they would "constitute a clearly unwarranted invasion of personal privacy.” Joey Senat, an Oklahoma State University journalism professor and open government expert, said the argument that birth dates are driver records is absurd and a misinterpretation of a law designed to prevent the state Public Safety Department from releasing their driver’s license records. The city’s second argument is part of a growing national debate about government openness. Corinna Zarek, freedom of information director at the Reporter’s Committee for Freedom of the Press, said birth dates became a hot-button issue after 9/11. "It’s been another one of those areas where folks are concerned about their personal privacy and feel this is one way they can protect it,” Zarek said. The argument is driven mostly by fears over identity theft, even though there is little evidence to support the theory that identity thieves use public records in their crimes, Zarek said. "We have not seen the sort of statistics that should accompany such an argument,” Zarek said. "But how do you counter that? It’s a very fearful assertion.” Barbara Petersen, president of the Florida First Amendment Foundation and a past president of the National Freedom of Information Coalition, said she has not heard of a single case supporting the argument. "We couldn’t find any anecdotal evidence that anyone used a public record to commit the crime of identity theft,” Petersen said. "Identity theft is a problem, but the problem is not getting access to information contained in public records.” Interviewed in March during Sunshine Week, a national effort to promote open government, Oklahoma City police Capt. Steve McCool and Assistant District Attorney Martha McMurry of Oklahoma County’s white collar crimes division, both said there are three main ways identities are stolen — mail theft, car theft and home burglary. Thieves often watch a victim’s mailbox, wait for the carrier to leave and steal bank statements, credit card bills or checks. A purse or wallet in a car also is a prime target. Both McMurry and McCool said they know of no cases when someone’s identity has been stolen from information gathered from a public record.
Why are birth dates necessary?Zarek said keeping birth dates a matter of public record is important to anyone who might want to check up on someone with a common name, be it a school teacher, government employee, baby sitter or potential romantic interest. If such a person is accused of a crime, it can be impossible to differentiate between two people with the same name without a birth date. Open government proponents also point out that birth dates are already available in state voter records and many other public documents, undercutting the argument that releasing them would be an invasion of privacy. The privacy exemption in the Oklahoma Open Records Act cites examples of records that would qualify, including employee evaluations, payroll deductions, employment applications submitted by people who are not hired and college transcripts, "That information is not available anywhere else but that personnel file,” Senat said. "When you are talking about information that is commonly found in other records, how can it be private?”
Florida First Amendment Foundation president
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Presumption of openness
Open government expert Joey Senat, an Oklahoma State University journalism professor, said one of the chief causes of open records conflicts is a tendency for government officials to ignore case law that says records are presumed open. In a 1986 case, the Oklahoma Supreme Court ruled that "disclosure is to be favored over a finding of exemption.” "The premise is that unless it’s exempted, it’s open,” Senat said. "If it’s not specifically mentioned as an exemption, and there is no case law saying it’s closed, it should be open.” Senat said birth dates are a good example. Government agencies denying the release of employee birth dates cite an exemption in the Oklahoma Open Records Act for unwarranted invasions of personal privacy. Birth dates are not specifically exempted from the Oklahoma Open Records Act, and there is no case law classifying their release as an invasion of privacy. "Attorneys for agencies are always trying to cover the agency’s rear end,” Senat said. "They are always trying to narrowly interpret things so that the agency can’t be held liable for something.”