Cathy Takase's Opinion on Releasing Honolulu City Salaries


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Cathy Takase's Opinion on Releasing Honolulu City Salaries

  1. 1. LINDA LINGLE GOVERNOR STATE OF HAWAII JAMES R. AIONA, JR. OFFICE OF THE LIEUTENANT GOVERNOR CATHY L. TAKASE ACTING DIRECTOR EUTENANT GOVERNOR OFFICE OF INFORMATION PRACTICES NO. 1 CAPITOL DISTRICT BUILDING 250 SOUTH HOTEL STREET, SUITE 107 HONOLULU, HAWAII 96813 Telephone: (808) 586 1400 FAX: (808) 586-1412 E-MAIL: O wai pv WVW WV L92VQ2 The Office of Information Practices (OIP) is authorized to issue this advisory opinion under the Uniform Information Practices Act (Modified), chapter 92F, Hawaii Revised Statutes (HRS) (the UIPA) pursuant to section 92F-42, HRS. MEMORANDUM OPINION Requester: Carrie K. S. Okinaga, Corporation Counsel Agency: City and County of Honolulu Date: September 15, 2010 Subject: Disclosure of Employee Names, Titles and Salaries (U RFO-G 11-1) Requester seeks an opinion on whether the City and County of Honolulu must disclose the names of all city employees in conjunction with each employee’s respective title and salary or salary range in response to a request made under part II of the UIPA. Unless otherwise indicated, this advisory opinion is based solely upon the facts presented in the City’s letter to OIP dated September 7, 2010. Opinion The UIPA requires the City to disclose the name, title and salary (or salary range for covered employees) for all City employees, except present or former law enforcement personnel. Although there may be legitimate arguments that identifiable salary information is the type of information that would usually fall under the UIPA’s privacy and frustration exceptions, those arguments cannot be considered here because of the statutory requirement that this information be disclosed without consideration of the exceptions to disclosure under HRS § 92F-13. Statement of Reasons for Opinion In HRS § 92F-12, the Legislature specifically listed records that are “unambiguously” required to be disclosed. S. Conf. Comm. Rep. No. 235, Haw. S.J. 689, 690 (1988); H. U MEMO 11-3
  2. 2. Conf. Comm. Rep. No, 112-88, Haw. H.J. 817, 818 (1988); see OIP Op. Ltr. No. 93-10 at 2-3; OIP Op. Ltr. No, 91-26 at 8. For these records, the exceptions to disclosure for personal privacy and for frustration of a legitimate government purpose are inapplicable, unless expressly provided for under a specific subsection of § 92F-12. (Legislature stated that as to the records listed in § 92F-12, “the exceptions such as for personal privacy and for frustration of a legitimate government purpose are inapplicable”); HRS § 92F-12(a)(”[alny other provision in this chapter to the contrary notwithstanding, each agency shall make available. .“);‘ see e.g., HRS . § 92F-12(a)(2) (requiring disclosure of agency “[f]inal opinions. except to the extent . . protected by section 92F- 13(1)”). HRS § 92F-12(a)(14) is applicable here. Under that subsection, the Legislature expressly required that “[amy other provision in this chapter to the contrary notwithstanding, each agency shall make available... [tihe name, compensation (but only the salary range for employees covered by or included in chapter 76, and sections 302A-602 to 302A-640, and 302A-701, or bargaining units (8)), job title, provided . . that this paragraph shall not require the creation of a roster of employees; and provided further that this paragraph shall not apply to information regarding present or former employees involved in an undercover capacity in a law enforcement agency[.]” HRS § 92F-12(a)(14). Subsection -12(a)(14) does not provide for application of any exception under § 92F-13. Thus, an agency must disclose the names, job titles and exact salary amounts for each exempt employee and salary ranges for each covered or included employee, unless an employee is or was in an undercover law enforcement capacity. OIP Op. Ltr. No. 93-10 (finding that § 92F- 12(a)(14) required exact salaries be disclosed for exempt employees and salary ranges for civil service employees, and discussing in full that section’s legislative history, including amendments). The City has raised a variety of privacy and frustration concerns over the requested disclosure of the names, job titles and salaries of all City employees. OIP understands some of the City’s concerns. However, given the Legislature’s clear intent to require this information to be made available and to not allow application of exceptions for privacy and frustration, OIP is constrained to find that these concerns cannot be considered by OIP under § 92F-12, but must instead be addressed to the Legislature. The City also points to HRS § 92F-14(b)(6) for justification in withholding employees’ names. HRS § 92F-14 contains examples provided by the Legislature of the types of information in which individuals have a significant privacy interest that should be balanced against the public interest in disclosure. Subsection -14(b)(6), specifically, provides that individuals have a significant privacy interest in various financial information, including their income. However, as expressly made clear in subsection 1 Prior to amendment in 2005, this phrase read “[amy provision to the contrary notwithstanding[.]” U MEMO 11-3 2
  3. 3. -14(b)(4), identifying a significant privacy interest for personnel file type information, the identification of a significant privacy interest under subsection -14(b)(6) does not negate the specific, required disclosure of government employees’ names, compensation and job titles under § 92F-12(a)(14). S HRS § 92F-14(b)(4) (identifying a significant privacy interest in personnel file type information, but expressly excepting “[ilnformation disclosed under section 92F-12(a)(14)”); ci’. OIP Op. Ltr. No. 04-13 (OIP balanced disclosure of other financial information of government employees identified as significant under § 92F-14(b)(6) where that information was nç salary or salary ranges that are required to be disclosed under § 92F-12(a)(14)). The City further cites to three legal authorities that protected the identities of individuals in connection with certain financial information. These authorities, however, are inapposite. First, the City cites an opinion in which OIP found that the UIPA’s privacy exception protected the identity of government employees who elected to become class C members in the Employees’ Retirement System. This type of financial information, however, is not information required to be disclosed under § 92F-12(a)(14), and thus the privacy exception could and did apply. Second, the City cites two federal cases that protected the identity of persons on a government annuity payroll and on certified payrolls. These cases do not provide useful guidance here because the federal freedom of information law applied in those cases has no provision identical to § 92F-12(a)(14), and because the cases concerned disclosure of different information (the names of government employees eligible to participate in the federal government’s civilian retirement system rather than direct compensation, and the compensation of individuals who were not government employees, respectively). The City also asks what authority requires the City to create a roster of its employees given the statement in HRS § 92F-12(a)(14) that it does not require the creation of a roster of employees. If the City does not maintain a “roster” or “rosters,” then one need not be created in order to respond to the request made. However, HRS § 92F- 11(c) requires an agency to compile a specific list of information requested if it is “readily retrievable.” S OIP Op. Ltr. No. 90-35. Whether information is “readily retrievable” presents a question of fact that must be determined on a case-by-case basis. Id. at 9-10 (given that the Commission on Water Resource Management, using existing programming capabilities, had routinely retrieved an electronic mailing list of persons filing a Declaration of Water Use for its own use, OIP concluded that such information is “readily retrievable”). If the data is not “readily retrievable,” the agency must alternatively provide the records it maintains that contain the requested 2 information. See eneral1y OIP Op. Ltr. No. 94-3 (duty to provide existing records). 2 Note that “there is no exception in the UIPA for requests that an agency deems too burdensome.” State Org. of Police Officers v. Society of Professional Journalists University of Haw. Chapter, 83 Haw. 378, 395 (Haw. 1996) UMEMO11-3 3
  4. 4. Lastly, the City seeks guidance regarding disclosure of the identities of certain law enforcement personnel in light of the exception provided in HRS § 92F-12(a)(14), for “present or former employees involved in an undercover capacity in a law enforcement agency.” Specifically, the City has asked for guidance concerning law enforcement employees who are not currently performing undercover activities but may be involved in undercover activities in the future. A plain and narrow reading of the exception for “present or former employees involved in an undercover capacity” limits withholding to those law enforcement employees that are, or were, engaged in an undercover law enforcement capacity. See OIP Op. Ltr. No. 9 1-26; HRS § 92F-2 (chapter to be construed to promote its underlying purposes and policies of access). Without more specific factual justification, OIP does not read this language, as the City suggests, to include law enforcement employees who could potentially receive an undercover assignment at some future date. S HRS § 92F-27(c) (agency has burden of proof to establish justification for nondisclosure); see generally OIP Op. Ltr. No. 93-05 (application of UIPA’s exceptions should be narrow and not rest upon tenuous, conclusory, or speculative arguments). OIP is available to provide guidance to the City or its various law enforcement agencies on whether certain employees fall under the exception for present or former undercover law enforcement personnel, where the City or individual agency presents more specific facts on which to opine. OFFICE OF INFORMATION PRACTICES Cathy L. Takase Acting Director UMEMO11-3 4