TRANSPARENCY TUESDAY: We shouldn’t need to explain this, but… the ADA isn’t an excuse to conceal public records

Colleges are nothing if not laboratories for experimentation with out-on-the-edge ideas. No thought is too wild, no notion too extreme, that it cannot be tested in the intellectual marketplace of the college campus.

That certainly is true of the alibis that college administrators give for refusing to honor requests for public records. The creativity of their excuses is completely uninhibited by the law, limited only by their ability to maintain a straight face.

We thought we’d heard every dog-ate-my-documents reason for obfuscating in the face of an open-records request, but the innovators at Oklahoma City Community College have opened up new frontiers in denial with their assertion to OCCC’s student newspaper, The Pioneer, that they are allowed to withhold otherwise-open records because of … the Americans with Disabilities Act (“ADA”).

Now, as a person with walking-around sense, you might think that a federal law requiring employers to make reasonable accommodations to the medical limitations of their employees, and to refrain from discriminating against those with limitations (whether actual or perceived), has nothing to do with the Oklahoma Open Records Act. Oh, but that is because you must be one of those color-inside-the-lines literalists who believes that laws are limited to mere words printed on a page.

If you look at the law more like a Jackson Pollock painting, and you squint at it through the eyes of a daringly innovative college administrator — or someone who’s been huffing a lot of paint thinner — then you’ll start to see that the law can mean whatever you say it means. As long as your students don’t have the money to take you to court.

Sigh. It shouldn’t be necessary even to shoot this one down, but…

The Americans with Disabilities Act contains one and only one reference to confidentiality. Section 12112(d)(3) of the Act provides that, if an employer requires a health exam as part of pre-employment screening, the employer must treat the exam results “as a confidential medical record” and share them only with statutorily authorized people (supervisors, first-aid personnel, investigators).

The ADA covers only information that is obtained by an entity such as OCCC in its capacity as an employer. It is a law about employer/employee relations, not a blanket “disability secrecy law.”

As in almost all states, Oklahoma law already provides an exemption allowing agencies to withhold records that would constitute a “clearly unwarranted invasion of personal privacy.” The same section of the Act also exempts “examination and selection material for employment” found in employee personnel files. Because of those exceptions, the ADA should never come into the discussion; any medical record covered by the ADA wouldn’t be a public document under Oklahoma law in the first place.

But of course, the reporters at The Pioneer understand this very well. They aren’t peeping Toms. They weren’t asking for records of people’s medical checkups, the results of which would almost never be legitimately newsworthy to print.

They were asking for the foundational types of public documents to which reporters at every city, county and college campus across the country routinely are given access, such as police department incident write-ups. And it was those types of requests that prompted the college to invoke — among numerous other dubiously applicable exceptions — the ADA.

(And remember: Even if confidential medical information appears in a public document, it is the agency’s duty to redact the confidential portions and produce the rest, if practically feasible. So even the presence of a medical record in an otherwise-public government file does not excuse production of the entire file.)

In the words of Oklahoma State professor Joey Senat, a leading authority on the state’s open records statute, “OCCC officials… are treating college journalists with the same disrespect that many high school administrators show for their students.” (There’s a recruiting slogan for you: “Come to OCCC, and relive the best days of high school all over again.”)

To be clear: Unless what you are asking to see is a government employee’s pre-employment medical exam — and if you are, ick — the ADA has exactly as much relevance to your public-records requests as the Smoot-Hawley Tariff Act.