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City request for oip opinion


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  • 1. DEPARTMENT OF THE CORPORATION COUNSEL CITY AND COUNTY OF HONOLULU 530 SOUTH KING STREET, ROOM 110 • HONOLULU, HAWAII 96813 PHONE: (808) 768-5193 • FAX (808) 768-5105 • INTERNET: KIRK W. CALOWOLL CARRIE KS. OKINAGA ACTING MAYOR CORPORATION COUNSEL KATHLEEN A KELLY FIRST DEPUTY CO0RATION COUNSEL September 7, 2010 Cathy L. Takase, Director Office of Information Practices State of Hawaii No. I Capitol District Building 250 South Hotel Street, Suite 107 Honolulu, Hawaii 96813 Dear Ms. Takase: Re: Request for Names, Titles and Salaries for all City Employees The City and County of Honolulu (‘City’) has received a request pursuant to Hawaii Revised Statutes (“HRS”) Chapter 92F for information regarding Thames, titles and salaries of all temporary and permanent employees of the City and County of Honolulu”. Attached for your reference is a copy of that request. The City understands that similar requests were made of the State of Hawaii and that the State and its various entities have provided the requested information. While the City agrees strongly, too, that the public has a right to know how its money is being spent, we would appreciate guidance from your office as to the propriety of such a response. The City has received comments from its employes regarding their concerns about the disclosure of what they believe to be inherently private information. In addition, the City is aware that at least one exclusive employee representative (“union”) has been looking into the legal ramifications of disclosing this information. The City requests that your office provide guidance and information with regards to the City’s obligation to respond to this request. HRS § 92F-12(a)(14) requires disclosure of government records containing “name, compensation , 1 job title.” However, the section also - . states, ‘provided that this paragraph shall not require the creation of a roster of employees,” and HRS § 92F14(b)(6) clearly states that an individual has a significant privacy interest in his/her “income”. Given these seemingly relevant 1 “Compensation” is different from “salary’; Civil Beat is requesting each employee’s salary or salary range.
  • 2. Cathy L. Takase, Director Office of lnforrbation Practices September 7, 2010 Page 2 but conflicting provisions, we would like guidance from your office as to whether or not a balancing of interests would be appropriate, j public’s right to know as weighed against the individual employees privacy interests and the government’s ability to carry out its functions, such that the City could disclose just the job title and salary information for each employee. At the outset, please note that the only “public interest” cited by the requestor, Civil Beat, is that the “information will be used in reports published in the Civil Beat, an online news service based in Honolulu that is available to members of the public at” Civil Beat charges membership fees for unrestricted access to all of its posted information, so while Civil Beat may cite public interest as its motivation, clearly private interest is also part of its motivation. attached cached page from Civil Beat site dated August 16, 2010 (‘We’ll also include an example of a sortable database to show you what we’re offering our full members. (We have a special Election offer right now, half-off for the first three months.) Members will be able to sort the data by any field. So, for example, if they want to soft the salaries from highest to lowest, they’ll be able to do that.”). We have never before received a request like this from anyone, media, City Council, or otherwise, requesting personal information for each one of our employees, by name, for general public viewing. Where the public or the media has been interested in particular employees perhaps because of some alleged wrongdoing, we have disclosed relevant information. Where the public is interested in how much a particular department or the City spends on salaries in general on a certain function, we have provided that information, as well. This request is a first. Your guidance would be helpful going forward as well, because our employee roster is changing constantly because of hires and departures, and we anticipate possible future requests like the Civil Beat request Given the above concerns, the City requests that your office provide guidance and information with regards to the following matters: 1. HRS § 92F-12(a)(14) states that we are not required to create a roster of employees. The information responsive to the Civil Beat request does not exist in one location and or one report. Civil Beat’s request is really a request for creation of a roster of all City temporary and permanent employees, since we do not believe Civil Beat is requesting review of the actual personnel records of
  • 3. Cathy L. Takase, Director Office of Information Practices September 7, 2010 Page 3 each and every employee. What authority then requires the City to create or 2 provide such a roster? 2. HRS § 92F-14(b)(6) provides that individuals have significant privacy interests in “information describing an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness”. And I—IRS § 92F-13(1) states that government records need not be disclosed if disclosure “would constitute a clearly unwarranted invasion of personal privacy.” Is disclosure of every employee’s name, job title and salary (again, HRS requires disclosure of “compensation” and “salary ranges,” not individual salaries) required even though individuals have expressed to us that they believe said disclosure violates their privacy interests? Your office has previously opined that government employees who chose to become a member of the ERS (employees’ retirement system) have a significant privacy interest in the disclosure of their names. DIP Ltr. 91-7. You opined that disclosure should be the number of employees rather than a list of names, as there is no significant privacy interest in the number of government employees within ERS. 3 In addition, in interpreting the federal Freedom of Information Act (“FOIA”), the courts have found that government employees have privacy interests, particularly in salary information. ri NationalAssociation of Retired Federal Employees v. Homer, 879 F.2d 873 (D.C. Cir. 1989), the Court of Appeals went beyond the mere determination as to whether disclosure would violate a significant privacy interest under exemption 6 of the Freedom of Information Act, 5 U.S.C. § 552(b)(6) (“FOIA”). Rather, the Court determined that the analysis must go further and determine whether such disclosure would “invite unwarranted intrusion”. Id. at 878. Thus, the Court ruled that disclosure of a list of names and addresses of persons on a government annuity payroll would be a clear and unwarranted invasion of privacy. Moreover; in Painting lndustiy of Ha wall Market Recovery v. United States Department of the Air Force, 26 F.3d 1479 (gth Cir. 1994), the Ninth Circuit Court of Appeals determined that the 2 To conform Civil Beat’s request with HRS 92F which pertains to government records, its request is actually a request for review of thousands of personnel files, with non-requested information redacted. This production/redaction effort would be onerous for the City, as it would be for Civil Beat staff to review same. Please also see QIP Ltr. 91-18 where your office opined that State Hawaii Public Employer’s Health Fund may disclose a confidential list of its members to the State Department of Budget and Finance under HRS § 92F-1 9, but further disclosure would not be permitted.
  • 4. Cathy L. Takase, Director Office of Information Practices September 7, 2010 Page 4 disclosure of job classifications and pay rates was sufficient under FOIA. The Court balanced interests and found that the employees’ privacy interest was not outweighed by the marginal additional usefulness that names and addresses would serve in uncovering government activities. The basic question here is whether the disclosures required by HRS § 92F-12(a)(14) for public employees are subject to a balancing test, and the above-cited MRS language, your prior opinion and the aforementioned case suggest that balancing is not just possible, but advisable. Again, on its attached 92F request, Civil Beat did not state a specific purpose for this information, other than publication of this information on its website which again, charges fees for members hi p. By contrast, not only do individual City employees believe that their personal privacy is being infringed upon, but the City believes that such a pubJication may frustrate legitimate government functions, as described in HRS § 92F-13, where the morale of City employees may be impacted when they compare their salaries to other employees. No business the size of the City would publish on the internet all of its employees’ names, job titles, and salaries, as it may lead to raiding by competitors, morale problems, and ultimately, employees leaving the company. At a time when furloughs and smaller paychecks are resulting in increased workload and increased stress, all of these concerns are magnified. As the head of Corporation Counsel whose deputies’ exact salaries would need to be disclosed (as opposed to salary ranges), I am concerned about retention of our attorneys in this environment. While the obvious response is that public taxpayer dollars are at stake, and that the public is entitled to know this information, we would respectfully ask you to consider whether the public (as opposed to a private enterprise like Civil Beat seeking to generate revenue) needs to know every name, job title and salary information of every City employee, as opposed to what we believe to be a sufficient response, providing just job title and salary information, without listing names and without creating an employee name roster. Please let us know if you believe that this would be an appropriate response to the Civil Beat request. 3. HRS § 92F-12(a)(14) also states that the City is not required to disclose personnel “information regarding present or former employees involved in an undercover capacity in a law enforcement agency.” There are many law enforcement employees who are not currently performing undercover activities, but may be involved in undercover activities in the future. The disclosure of the
  • 5. Cathy L. Takase, Director Office of Information Practices September 7, 2010 Page 5 names of these individuals as employees of the City’s law enforcement agencies would clearly have an impact on the health and safety of these individuals. In addition, our law enforcement clients believe that the disclosure of the identity of certain law enforcement personnel (Police Officers, Prosecutors, Prosecutor’s Investigators, Liquor Commission Investigators) may endanger the health and safety of these individuals. See. e.g.. Exemption 7 of FOIA, 5 U.S.C. § 552(b)(7). Disclosure of name, job title and salary information regarding these individuals may also make them more vulnerable to harassment, bribery and/or threats. The Prosecutor’s Office, HPD, and the Liquor Commission would like a ruling from OIP specifically on their ability to withhold names of their employees. Again, for these law enforcement employees who may in the future be involved in undercover activities and whose leadership believes publication of names may result in safety concerns, we will also provide only their job titles and salary ranges. Please confirm that OIP believes this is a sufficient response on behalf of law enforcement employees. To meet the initial deadline for response to Civil Beat, we will be providing Civil Beat with the job title and salary information for each employee. Before we create an employee roster with this added personal information, however, we believe it would be prudent to await your response to this letter, so we would greatly appreciate your prompt attention to this matter. If you have any questions, please contact me at 768-5100. Very truly yours, CARRIE K. S. OKINAGA Corporation Counsel CKSO/DWHP:ey Attachments cc: Civil Beat