Tuesday, June 28, 2011

Supreme Court Rules In Favor Of OPEA On Birthdate Privacy, Prevents Records Harvesting

The Oklahoma Supreme Court released a ruling Tuesday affirming the position of the Oklahoma Public Employees Association that state employee birth dates should remain confidential.
The issue came to the forefront when reporters made a batch request of all state employee names and birth dates from the Oklahoma Office of Personnel Management in February of 2010. OPEA filed an injunction on behalf of state employees.
State Rep. Randy Terrill said today’s Oklahoma Supreme Court ruling is a victory for the personal privacy and safety of Oklahoma citizens who have state jobs.
The Oklahoma Supreme Court ruled that certain information related to public employees, particularly birth dates and personal identification numbers, should be released only in limited circumstances. The court ruled that a balancing test should be applied that weighs the public interest against the privacy and safety concerns of government employees.
Terrill said the decision clearly prevents the future blanket release of all state employees’ personal data.
In 2010, Terrill authored legislation that would have prevented the blanket release of state employees’ personal information. The bill was supported by the Department of Public Safety, Oklahoma State Troopers Association, Oklahoma State Bureau of Investigation, Oklahoma Bureau of Narcotics, Office of the Oklahoma State Fire Marshal, ABLE Commission, District Attorneys’ Council, CLEET, Oklahoma Office of Homeland Security, the Office of the Medical Examiner, Oklahoma Department of Corrections, and the Oklahoma Public Employees Association.
In addition to concerns about identity theft and fraud, supporters cited public safety concerns, warning that criminals could use employees’ personal data to identity the homes and family members of law enforcement officials.
The Court concluded:
Openness in government is essential to the functioning of a democracy. The greatest threat to privacy comes from government in secret. In order to verify accountability, the public must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process. It gives private citizens the ability to monitor the manner in which public officers discharge their public duties and ensures that such actions are carried on in an honest, efficient, faithful, and competent manner.
The purpose of openness in government is not fostered by disclosure of information about private citizens that is accumulated in various government files but reveals little or nothing about an agency's own conduct. Rather, governmental agencies and the courts have a special obligation to protect the public's interest in individual privacy by acknowledging that public records are being harvested for personal information about individuals, contributing to a surge in identity theft, consumer profiling, and the development of a stratified society where individuals are pigeonholed according to the electronic trail they leave of transactions that disclose personal details.
[In enacting recent legislation], the Oklahoma legislature sought to construct an exemption which would require a balancing of an individual's right of privacy against the preservation of the basic purpose of Oklahoma's Open Records Act. The device adopted to achieve that balance was the limited exemption where privacy was threatened for the clearly unwarranted invasion of personal privacy.
We determine that the legislative language utilized in [the recently passed legislation] indicates the legislature intended to provide a non-exclusive list of examples of information, release of which may amount to a clearly unwarranted invasion of State employees' personal privacy and that where a claim is made that disclosure would constitute a clearly unwarranted invasion of personal privacy within the meaning of the statute, application of a case-by-case balancing test is utilized to determine whether personal information is subject to release. We determine that when the balancing test is applied to the facts presented, where significant privacy interests are at stake while the public's interest either in employee birth dates or employee identification numbers is minimal, release of birth dates and employee identification numbers of State employees “would constitute a clearly unwarranted invasion of personal privacy” [under the recently enacted state law].
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