2005-01 Disclosure of Exact Salaries OIP Opinion 05-03

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Mr. Michael Tresler January 19, 2005 Page 5 is consistent with the statute. At first blush, the Charter provision may appear to conflict with the UIPA's privacy exception. On closer review, however, we find no conflict between the statute and the Charter's requirement, notwithstanding the fact that the Charter's requirement results in the exact salaries of covered employees being disclosed. Prior OIP opinions reveal a somewhat inconsistent interpretation regarding records that fall within the privacy exception, section 92F-13(1), HRS. For instance, after concluding that disclosure of retired public employees'retirement benefits would constitute a clearly unwarranted invasion of privacy, we noted that the plain language of the privacy exception did not prohibit an agency from disclosing such information that fell within the exception. OIP Op. Ltr. No. 90-1 at 9 (Jan. 8, 1990). In that opinion, however, in light of the right to privacy contained in Hawaii's Constitution, we strongly recommended against disclosure of information which, if disclosed, would constitute a clearly unwarranted invasion of privacy absent a court order or statute specifically requiring disclosure. Id. Subsequently, a number of our opinions construing the privacy exception appear to have interpreted the statute as prohibiting disclosure of those records that are covered by the exception. As an example, in OIP Opinion Letter.Number 95-16, after noting that the federal Freedom of Information Act's exceptions to disclosure"permit but do not compel the non-disclosure of federal agency records,"we stated that, under the UIPA: an agency must not disclosure government records that would constitute a clearly unwarranted invasion of personal privacy under section 92F-13(1), Hawaii Revised Statutes, or records that are protected from disclosure by specific State statutes or by order of a court, under section 92F-13(4), Hawaii Revised Statutes. OIP Op. Ltr. No. 95-16 at 13 (July 18, 1995) (emphasis added). Because of the inconsistency between our earlier opinions, we believe that it is necessary to clarify our interpretation of the privacy exception and to provide more specific guidance regarding our interpretation of the manner in which an agency should respond to a request for access to records that fall within that exception. As we have noted in numerous prior opinions, the UIPA is intended to protect the public's right to access government records as well as to implement the right to privacy under Hawaii's Constitution. See Haw. Rev. Stat. § 92F-2 (1999); see also Conf. Comm. Rep. 112-88, 14th Leg., 1988 Reg. Sess., Haw. H.J. 817 (1988); State of Hawaii Organization of Police Officers v Society of Professional Journalists, 83 Haw. 378, 396(1996). In fact, the statute's purpose section expressly directs that: [t]he policy of conducting government business as openly as possible must be tempered by a recognition of the right of the people to privacy, OIP Op. Ltr. No. 05-03