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

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Mr. Michael Tresler January 19, 2005 Page 7 University of Hawaii Chapter, 83 Haw. 378, 927 P.2d 386 (1996). Accordingly, if an agency is intent upon disclosing a record that may be withheld under section 92F- 13(1), HRS, we strongly recommend that the agency first determine, through consultation with its attorney, whether the information contained in the record arises to the level of constitutionally protected information. If the information contained in the record does not fall within the constitutional right to privacy, we believe that an agency may then elect to disclose that record.lo In this case, we do not believe that Finance must consult with its attorney before disclosing the covered employees'exact salaries. While the covered employees may have a significant privacy interest in their exact salary, they do not have constitutionally protected right to keep their exact salaries private. Nakano v. Matayoshi, 68 Haw. 140, 149, 706 P.2d 814, 819 (1985) (government employees have a reduced expectation of privacy in their salaries, which are of legitimate public concern, and that disclosure of exact salaries does not violate the constitutional right of privacy); see also Haw. Rev. Stat. § 92F-12(a)(14) (Supp. 2003) (requiring disclosure of exact salaries of exempt employees). While it is our opinion that the UIPA does not prohibit Finance from publicly disclosing the exact salaries of covered employees, notwithstanding the fact that the exact salaries could be withheld under section 92F-13(1), HRS,11 the question remains as to whether the Charter provision that requires disclosure of the proposed budget, which includes the covered employees' exact salaries, and thereby obliterates Finance's discretion under the UIPA to withhold the information, is contrary to the statute. We previously have opined that a county charter provision is inferior to the UIPA and, therefore, cannot provide greater restrictions on access to records. See, e.g.. OIP Op. Ltr. No. 95-14 (May 8, 1995). However, in contrast to that opinion, in this case, the Charter requires greater disclosure than that required by the UIPA. In analyzing the question, we again consider the statute's purpose. We are persuaded that the statute is premised on disclosure. That is, the basic objective of should be withheld. See Haw. Rev. Stat. §92F-13(4) (1999). Although the UIPA may confer upon the agency the discretion to disclose the record, the other statute may require that the record be withheld. to See Arakawa v. Sakata, 133 F. Supp.2d 1223, 1230 (D. Haw. 2001) (government employee immune from suit as long as conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known); see also Haw. Rev. Stat. 92F-16 (1999). 11 We have not attempted to balance the public's interest in disclosure against the privacy interest of the covered employees. Because of the manner in which we believe the statute and the Charter must be construed,we need not balance the competing interests. OIP Op. Ltr. No. 05-03