Experts say Oklahoma City off base in protecting birth dates

BRYAN DEAN Modified: April 2, 2010 at 6:31 pm •  Published: August 31, 2009
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. Your Right to Know

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"We couldn’t find any anecdotal evidence that anyone used a public record to commit the crime of identity theft. ... The problem is not getting access to information contained in public records."
Barbara Petersen
Florida First Amendment Foundation president

Your Right to Know
To view ongoing coverage of open government issues, go to NewsOK’s Your Right to Know page.

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.”

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