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

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t Mr. Michael Tresler January 19, 2005 Page 6 as embodied in section 6 and section 7 of Article I of the Constitution of the State of Hawaii. Haw. Rev. Stat. § 92F-2 (1999). While the legislature intended that the constitutional right of privacy be considered in every appropriate case, in our opinion, not every record that may be withheld under the privacy exception falls within the constitutionally protected right to privacy. Because we believe that the privacy exception is broader than and allows protection of records that may not be protected by the Hawaii Constitution's right to privacy, we cannot interpret the language of section 92F-13, HRS, which provides that the section "shall not require disclosure" of the records listed therein, as prohibiting disclosure of records that fall within the statute's exceptions to disclosure. We simply do not read that language to preclude disclosure of the records. Rather, we interpret the exceptions to disclosure in section 92F-13, HRS, to confer on the agency maintaining the particular record the discretion to withhold the record from disclosure. That is, in our opinion, section 92F-13, HRS, contains the exceptions to mandatory disclosure; however, those exceptions do not prohibit agency disclosure. Accordingly, to the extent that our earlier opinions state or imply that records falling within the privacy exception must be withheld, those opinions are hereby overruled.8 See OIP Op. Mr. No. 02-08 (Sept. 6, 2002) (setting forth the standard for reconsideration of prior opinions). Our interpretation, however, does not mean that an agency should choose, in its discretion, to disclose any record that falls within.the UIPA's privacy exception. Because of the legislature's clear intent to protect a person's constitutional right to privacy, where a person's privacy interest outweighs the public's interest in disclosure, we believe generally that agencies should exercise their discretion to withhold the record. Although the UIPA grants discretion to an agency to disclose and does not require withholding, where a record implicates a person's constitutional right to privacy, it is our opinion that the Constitution requires the agency to withhold the record.9 See SHOPO v. Society of Professional Journalists- 8 Although some of earlier opinions appear to have concluded otherwise, we note that the UIPA's legislative history directs that"ftlhe case law under the Freedom of Information Act should be consulted for additional guidance." S. Stand. Comm. Rep. 2580, 14th Leg., 1988 Reg. Sess., Haw. S.J. 1094 (1988). The United States Supreme Court's opinion in Chrysler Corp. v. Brown, 441 U.S. 281, 60 L. Ed. 2d 208, 99 S. Ct. 1705 (1978), further reinforces our present conclusion. In holding that that the exemptions to disclosure in the federal Freedom of Information Act ("FOIA") were not mandatory bars to disclosure, the Court concluded that the exemptions reflected Congress' concern about"the agency's need or preference for confidentiality; the FOIA by itself protects the submitters' interest in confidentiality only to the extent that this interest is endorsed by the agency collecting the information."Chrysler, 441 U.S. at 293 (italics in original). 9 Similarly, where a statute outside of the UIPA makes a record(or information contained in the record)confidential,i.e.,protected from public disclosure,we believe that the record OIP Op. Ltr. No. 05-03