Oklahoma Pub. Emps. Ass'n v. State ex rel. Oklahoma Office of Pers. Mgmt.

• Citation: 2011 OK 68,39 Media L. Rep. 2610,32 IER Cases 912,267 P.3d 838
• Decision Date: 28 November 2011
• Docket Number: 108,841.,Nos. 108,839,s. 108,839
• Parties: OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION, Plaintiff/Appellant, v. STATE of Oklahoma ex rel. OKLAHOMA OFFICE OF PERSONNEL MANAGEMENT, Defendant/Appellee.Oklahoma Public Employees Association, Plaintiff/Appellant, v. State of Oklahoma ex rel. Oklahoma Office of State Finance, Defendant/Appellee.Oklahoma Public Employees Association, Plaintiff/AppelleeandState of Oklahoma ex rel. Oklahoma Office of Personnel Management, Defendant/AppelleeandOklahoma Public Employees Association, Plaintiff/AppelleeandState of Oklahoma ex rel. Oklahoma Office of State Finance, Defendant/Appellee, v. World Publishing Company and The Oklahoma Publishing Company, Intervenors/Appellants.
• Court: Supreme Court of Oklahoma

2011 OK 68

267 P.3d 838

32 IER Cases 912

39 Media L. Rep. 2610

OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION, Plaintiff/Appellant,

v.STATE of Oklahoma ex rel. OKLAHOMA OFFICE OF PERSONNEL MANAGEMENT, Defendant/Appellee.Oklahoma Public Employees Association, Plaintiff/Appellant,

v.State of Oklahoma ex rel. Oklahoma Office of State Finance, Defendant/Appellee.Oklahoma Public Employees Association, Plaintiff/AppelleeandState of Oklahoma ex rel. Oklahoma Office of Personnel Management, Defendant/AppelleeandOklahoma Public Employees Association, Plaintiff/AppelleeandState of Oklahoma ex rel. Oklahoma Office of State Finance, Defendant/Appellee,

v.World Publishing Company and The Oklahoma Publishing Company, Intervenors/Appellants.

Nos. 108,839

108,841.

Supreme Court of Oklahoma.

June 28, 2011.Rehearing Denied Nov. 28, 2011.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY¶ 0 The Oklahoma Publishing Company (Oklahoman) and World Publishing Company (Tulsa World) (collectively, publishers), filed open records requests with the Office of Personnel Management (OPM) and the Office of State Finance (OSF). Both the Oklahoman and Tulsa World sought release of birth dates of all state employees. In addition, the Tulsa World requested employee identification numbers. The Oklahoma Public Employees Association (OPEA) filed two suits against OPM and OSF, respectfully. Both petitions requested declaratory judgment and injunctive relief barring the release of employees' birth dates. The second suit also sought to bar employee identification numbers from disclosure. The district court consolidated the causes. All parties filed motions for summary judgment. Relying on an opinion of the Oklahoma Attorney General (AG), the trial court sustained OPEA's and OPM's motions. It ordered that: state agencies be given sixty (60) days notice to report their decisions on whether disclosure of date of birth requests would be a clearly unwarranted invasion of personal privacy pursuant to 51 O.S. Supp.2005 § 24A.7(A)(2); public access could be denied to employee identification numbers; and legislative staff records were exempt from disclosure under the Oklahoma Open Records Act (Open Records Act/Act), 51 O.S.2001 § 24A.1 et seq. Upon a de novo review, we determine: 1) 51 O.S. Supp.2005 § 24A.7(A)(2) contains a non-exclusive list of examples of information, release of which may amount to a clearly unwarranted invasion of State employees' personal privacy; 2) where a claim is made that disclosure under 51 O.S. Supp.2005 § 24A.7(A)(2) would constitute a clearly unwarranted invasion of personal privacy, application of a case-by-case balancing test is utilized to determine whether personal information is subject to release; and 3) 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 51 O.S. Supp.2005 § 24A.7(A)(2).AFFIRMED.

Kevin R. Donelson, Carole L. Houghton, Fellers, Snider, Blankenship, Bailey & Tippens, P.C., Oklahoma City, Oklahoma, for Oklahoma Public Employees Association.

Stephen J. Krise, Oklahoma Office of Attorney General, Oklahoma City, Oklahoma, for State ex rel. Oklahoma Office of Personnel Management and Oklahoma Office of State Finance.

Michael Minnis, Doerner, Saunders, Daniel & Anderson, L.L.P., Oklahoma City, Oklahoma, and S. Douglas Dodd, Tulsa, Oklahoma, for the Oklahoma Publishing Company d/b/a The Oklahoman.J. Schadd Titus, Titus Hillis Reynolds Love Dickman & McCalmon, Tulsa, Oklahoma, for World Publishing Company d/b/a Tulsa World.S. Douglas Dodd, Doerner, Saunders, Daniel & Anderson, L.L.P. Tulsa, Oklahoma, for Amici Curiae Griffin Television OKC, LLC, Griffin Television Tulsa, LLC, Oklahoma Press Association, Reporters Committee For Freedom of the Press, and FOI Oklahoma.Gary J. James, Gary J. James & Associates, P.C., Oklahoma City, Oklahoma, for Oklahoma State Troopers Association.Wellon B. Poe, Joseph A. Claro, Oklahoma Department of Public Safety, Oklahoma City, Oklahoma, for Oklahoma Department of Public Safety.Thomas E. Prince, Prince Law Office, P.C., Edmond, Oklahoma, for Amicus Curiae, CompSource Oklahoma.Robert D. Nelon, Jon Epstein, Hall, Estill, Hardwick, Gable, Golden and Nelson, Oklahoma City, Oklahoma, for Amici Curiae Local TV, LLC d/b/a KFOR–TV (Channel 4) Oklahoma City, Ohio/Oklahoma Hearst Television, Inc. d/b/a KOCO–TV (Channel 5) Oklahoma City; Sinclair Broadcast Group, Inc. d/b/a KOKH–TV (Channel 25) Oklahoma City, Scripps Media, Inc. d/b/a KJRH–TV (Channel 2) Tulsa, KTUL, LLC d/b/a KTUL–TV (Channel 8) Tulsa, Oklahoma Association of Broadcasters, Investigative Reporters and Editors, Inc., Radio Television Digital News Association.Nancy Pellow, Oklahoma City, Oklahoma, Pro Se.PER CURIAM:

¶ 1 Although the above styled and numbered causes were consolidated in the trial court, they were appealed under separate numbers. On October 26, 2010, an order issued in case No. 108,841 making the causes companion cases for purposes of the appeal and requiring that separate records be filed. Today, we withdraw our order of October 26th and consolidate the matters for resolution by a single opinion.¹

¶ 2 One first impression issue is common to both causes: whether public employees' dates of birth are open records, subject to public disclosure, under the Open Records Act. The second first impression issue, raised only in cause No. 108,841, is whether employee identification numbers are also public records which may be released. Both questions require us to consider whether the information release would be a “clearly unwarranted invasion” of Oklahoma's public service, state employees' personal privacy under 51 O.S. Supp.2005 § 24A.7(A)(2).² Because the issues presented are questions of law, our review is de novo.³

¶ 3 We determine that the legislative language utilized in 51 O.S. Supp.2005 § 24A.7(A)(2) 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. Here, the information requested could result in cases of identity theft and compromise of governmental computer systems yet bring little, if any, information to public attention which would enlighten Oklahoma citizens as to how their government runs, performs, or spends their tax dollars. Therefore, we determine that when the balancing test is applied to the facts presented, release of birth dates and employee identification numbers of State employees “would constitute a clearly unwarranted invasion of personal privacy” under 51 O.S. Supp.2005 § 24A.7(A)(2).⁴ Our decision is supported by the reasoning of: the United States Supreme Court and other federal courts considering virtually identical language found in the Federal Freedom of Information Act (FOIA); the overwhelming majority of state courts construing language similar to that found in Oklahoma's statute; and the Attorney General's persuasive opinion.

RELEVANT FACTS AND PROCEDURAL BACKGROUND

¶ 4 In response to a request by Senator Debbe Leftwich, the AG issued an opinion on December 8, 2009. The opinion provides that: 1) a public body has discretion to determine that disclosing a personnel record indicating the date of birth of the public employee is an unwarranted invasion of the employee's personal privacy under the Open Records Act, 51 O.S. Supp.2005 § 24A.7(A)(2); 2) in making the determination, the public body may weigh the employee's interest in non-disclosure against the public's interest in having access to the record; and 3) where the employee's interest in non-disclosure is dominant, birth dates should be kept confidential while releasing the balance of the requested personnel record.⁵

¶ 5 This cause arises out of two requests to obtain public information under the Open Records Act. On February 19, 2010, the Oklahoman submitted a request to the OPM specifically seeking disclosure of the names and corresponding birth dates of all state employees. The Tulsa World filed a similar request on May 26, 2010, also seeking release of employee identification numbers. The OPEA filed two petitions in district court on March 29th and June 21st, respectively. The first filing named as defendant the OPM; and the second suit was filed against the OSF. A legislative staff member and other entities were allowed to intervene in the first suit and the trial court allowed an amicus filing.⁶ When the two suits were consolidated, the Tulsa World was allowed to intervene.

¶ 6 From July through September, 2010, all parties filed for summary judgment. The trial court sustained the summary judgment motions of OPM and OSF in an order filed on September 21st. It found that: employee identification numbers were not subject to disclosure by any state agency; the Attorney General correctly stated the law regarding the release of state employees' birth dates requiring a balancing test to determine if such a release amounted to an unwarranted invasion of personal privacy; and utilization of the balancing test did not violate the equal protection clause. The trial court also determined that the records of legislative staff are protected from release by 51 O.S. Supp.2005 § 24A.3(2).⁷

¶ 7 Appeals were filed in both causes in October of 2010. Shortly thereafter, we were asked to retain the causes and to stay the effectiveness of the trial court's order. On December 9th, the motions to retain were granted. That same...