DEPARTMENT OF THE CORPORATION COUNSEL

CITY AND COUNTY OF HONOLULU530 SOUTH KING STREET, ROOM 110 • HONOLULU, HAWAII 96813

PHONE: (808) 768-5193 • FAX (808) 768-5105 • INTERNET: www.honoIuu.gov

KIRK W. CALOWOLL CARRIE KS. OKINAGAACTING MAYOR CORPORATION COUNSEL

KATHLEEN A KELLYFIRST DEPUTY CO0RATION COUNSEL

Cathy L. Takase, DirectorOffice of Information PracticesState of HawaiiNo. I Capitol District Building250 South Hotel Street, Suite 107Honolulu, 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 pursuantto Hawaii Revised Statutes (“HRS”) Chapter 92F for information regardingThames, titles and salaries of all temporary and permanent employees of the Cityand 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 andthat 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 itsmoney is being spent, we would appreciate guidance from your office as to thepropriety of such a response. The City has received comments from itsemployes regarding their concerns about the disclosure of what they believe tobe inherently private information. In addition, the City is aware that at least oneexclusive employee representative (“union”) has been looking into the legalramifications of disclosing this information. The City requests that your officeprovide guidance and information with regards to the City’s obligation to respondto this request.

HRS § 92F-12(a)(14) requires disclosure of government recordscontaining “name, compensation1,- . job title.” However, the section alsostates, ‘provided that this paragraph shall not require the creation of a roster ofemployees,” and HRS § 92F14(b)(6) clearly states that an individual has asignificant privacy interest in his/her “income”. Given these seemingly relevant

1 “Compensation” is different from “salary’; Civil Beat is requesting each employee’s salary orsalary range.

September 7, 2010

Cathy L. Takase, DirectorOffice of lnforrbation PracticesSeptember 7, 2010Page 2

but conflicting provisions, we would like guidance from your office as to whetheror not a balancing of interests would be appropriate, j public’s right to know asweighed against the individual employees privacy interests and thegovernment’s ability to carry out its functions, such that the City could disclosejust the job title and salary information for each employee.

At the outset, please note that the only “public interest” cited by therequestor, Civil Beat, is that the “information will be used in reports published inthe Civil Beat, an online news service based in Honolulu that is available tomembers of the public at www.civilbeat.com.” Civil Beat charges membershipfees for unrestricted access to all of its posted information, so while Civil Beatmay cite public interest as its motivation, clearly private interest is also part of itsmotivation. attached cached page from Civil Beat site dated August 16,2010 (‘We’ll also include an example of a sortable database to show you whatwe’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 anyfield. 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 thisfrom anyone, media, City Council, or otherwise, requesting personal informationfor each one of our employees, by name, for general public viewing. Where thepublic or the media has been interested in particular employees perhapsbecause of some alleged wrongdoing, we have disclosed relevant information.Where the public is interested in how much a particular department or the Cityspends on salaries in general on a certain function, we have provided thatinformation, as well. This request is a first. Your guidance would be helpfulgoing forward as well, because our employee roster is changing constantlybecause of hires and departures, and we anticipate possible future requests likethe Civil Beat request

Given the above concerns, the City requests that your office provideguidance and information with regards to the following matters:

1. HRS § 92F-12(a)(14) states that we are not required to create aroster of employees. The information responsive to the Civil Beat request doesnot exist in one location and or one report. Civil Beat’s request is really a requestfor creation of a roster of all City temporary and permanent employees, since wedo not believe Civil Beat is requesting review of the actual personnel records of

Cathy L. Takase, DirectorOffice of Information PracticesSeptember 7, 2010Page 3

each and every employee.2 What authority then requires the City to create orprovide such a roster?

2. HRS § 92F-14(b)(6) provides that individuals have significantprivacy interests in “information describing an individual’s finances, income,assets, liabilities, net worth, bank balances, financial history or activities, orcreditworthiness”. And I—IRS § 92F-13(1) states that government records neednot be disclosed if disclosure “would constitute a clearly unwarranted invasion ofpersonal privacy.” Is disclosure of every employee’s name, job title and salary(again, HRS requires disclosure of “compensation” and “salary ranges,” notindividual salaries) required even though individuals have expressed to us thatthey believe said disclosure violates their privacy interests?

Your office has previously opined that government employees who choseto become a member of the ERS (employees’ retirement system) have asignificant privacy interest in the disclosure of their names. DIP Ltr. 91-7. Youopined that disclosure should be the number of employees rather than a list ofnames, as there is no significant privacy interest in the number of governmentemployees within ERS3.

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 FederalEmployees v. Homer, 879 F.2d 873 (D.C. Cir. 1989), the Court of Appeals wentbeyond the mere determination as to whether disclosure would violate asignificant 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 analysismust go further and determine whether such disclosure would “inviteunwarranted intrusion”. Id. at 878. Thus, the Court ruled that disclosure of a listof names and addresses of persons on a government annuity payroll would be aclear and unwarranted invasion of privacy. Moreover; in Painting lndustiy ofHawall Market Recovery v. United States Department of the Air Force, 26 F.3d1479 (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 requestis actually a request for review of thousands of personnel files, with non-requested informationredacted. This production/redaction effort would be onerous for the City, as it would be for CivilBeat staff to review same.

Please also see QIP Ltr. 91-18 where your office opined that State Hawaii Public Employer’sHealth Fund may disclose a confidential list of its members to the State Department of Budgetand Finance under HRS § 92F-1 9, but further disclosure would not be permitted.

Cathy L. Takase, DirectorOffice of Information PracticesSeptember 7, 2010Page 4

disclosure of job classifications and pay rates was sufficient under FOIA. TheCourt balanced interests and found that the employees’ privacy interest was notoutweighed by the marginal additional usefulness that names and addresseswould 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 theabove-cited MRS language, your prior opinion and the aforementioned casesuggest that balancing is not just possible, but advisable. Again, on its attached92F request, Civil Beat did not state a specific purpose for this information, otherthan publication of this information on its website which again, charges fees formembers hi p.

By contrast, not only do individual City employees believe that theirpersonal privacy is being infringed upon, but the City believes that such apubJication may frustrate legitimate government functions, as described in HRS §92F-13, where the morale of City employees may be impacted when theycompare their salaries to other employees. No business the size of the Citywould 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 smallerpaychecks are resulting in increased workload and increased stress, all of theseconcerns are magnified. As the head of Corporation Counsel whose deputies’exact salaries would need to be disclosed (as opposed to salary ranges), I amconcerned 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 askyou to consider whether the public (as opposed to a private enterprise like CivilBeat seeking to generate revenue) needs to know every name, job title andsalary information of every City employee, as opposed to what we believe to be asufficient response, providing just job title and salary information, without listingnames and without creating an employee name roster. Please let us know if youbelieve 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 todisclose personnel “information regarding present or former employees involvedin an undercover capacity in a law enforcement agency.” There are many lawenforcement employees who are not currently performing undercover activities,but may be involved in undercover activities in the future. The disclosure of the

Cathy L. Takase, DirectorOffice of Information PracticesSeptember 7, 2010Page 5

names of these individuals as employees of the City’s law enforcement agencieswould clearly have an impact on the health and safety of these individuals.

In addition, our law enforcement clients believe that the disclosure of theidentity of certain law enforcement personnel (Police Officers, Prosecutors,Prosecutor’s Investigators, Liquor Commission Investigators) may endanger thehealth 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 theseindividuals may also make them more vulnerable to harassment, bribery and/orthreats. The Prosecutor’s Office, HPD, and the Liquor Commission would like aruling from OIP specifically on their ability to withhold names of their employees.

Again, for these law enforcement employees who may in the future beinvolved in undercover activities and whose leadership believes publication ofnames may result in safety concerns, we will also provide only their job titles andsalary ranges. Please confirm that OIP believes this is a sufficient response onbehalf of law enforcement employees.

To meet the initial deadline for response to Civil Beat, we will be providingCivil Beat with the job title and salary information for each employee. Before wecreate an employee roster with this added personal information, however, webelieve it would be prudent to await your response to this letter, so we wouldgreatly appreciate your prompt attention to this matter.

If you have any questions, please contact me at 768-5100.

Very truly yours,

CARRIE K. S. OKINAGACorporation Counsel

CKSO/DWHP:ey

Attachments

cc: Civil Beat