HomeMy WebLinkAboutCOM 0005.000 2002-2004
JAMES Y. ARAKAKI ~C~' Phone: (808) 961-8272
Chairman&Presiding Offrcer Fax: (808) 961-8780
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COUNTY COUNCIL`-
County of Hawaii
Hawaii County Building ~
25 Aupuni Street
Hilo, Hawaii 96720
November 12, 2002
TO: Council Members
FROM: James Y. Arakaki
Chair
RE: Disclosure of Salar' s
We have received the attached opinion dated November 12, 2002, from Deputy Corporation
Counsel Michael S. Kagami relating to the disclosure of salaries in various budget documents. I
am also attaching related material that preceded this opinion.
Any further discussion on this matter should occur in committee in order for your concerns to be
addressed by Mr. Kagami. By way of this memo, the public (media) would be informed prior to
the Council's budget review.
Att.
Comm. No.
File No.
Ref. To:, _
Ref. Date f1FG 1 3 7(1(19
-~-•yir '•1
V~
Harry Kim Lincoln S.T. Aahida
Mayor Cnrprration Counsel
ti ~r Gerald Talwse
'ti';•a.M~y
Assivtant Corporation Cnansel
~II>xri~~ II~ ~tC~FITt
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808) 961-8251 • FAX (808) 961-8622
i-. -
November 12, 2002
CONFIDENTIAL MEMORANDUM -.y
ATTORNEY/CLIENT PRIVILEGE 8~ ATTORNEY WORK PRODliCT
TO: James Y. Arakaki
Chairman, Hawaii County Council
FROM: Michael S. Kagami ~E.
Deputy Corporation Counsel
RE: Disclosure of Salaries
am providing the following in response to your September 16, 2002, memo on
the issues/concerns that you raise.
I reiterate that it is my opinion that, where applicable, an employee's specific
salary is information in which the employee has a significant privacy interest and,
generally, must not be disclosed to the general public. Disclosure of this information to
the public is allowed only if the public interest in disclosure outweighs the privacy
interest of the individual. The Office of Information Practices has likewise opined that
information that would disclose the exact salaries of identifiable covered employees
would constitute a clearly unwarranted invasion of personal privacy.
I will defend, if necessary, any challenge to the withholding of specific salary
information. I am unable guarantee success should there be a challenge. To do so
would be a foolish act. I am, however, confident in my interpretation of the law.
My opinion covers only those employees covered by Chapters 76 and 77,
Sections 302A-602 to 302A-640, or bargaining unit 8. It does not cover all employees
of the County. For those employees who are covered, salary ranges must be available.
Identification by a position's "grade" is sufficient only if the salary ranges for each grade
is also made available.
Chairman James Y. Arakaki
November 12, 2002
Page 2
My opinion does not address the format in which budget materials are presented
to the Council or the general public. It only addresses what should or should not be
disclosed in the budget materials.
My opinion only covers disclosures made to the general public. Specific salaries
can be disclosed to the Council in its budget review process. Budget materials
containing specific salary information that are given to the Council should not be made
available to members of the general public or to the press. The Council's mandate of
conducting program reviews and its decision-making role in the budgetary process is
not a public interest that may outweigh a covered employee's privacy interest because
the Council is getting the information it needs for these purposes. Disclosure of specific
employee salary information to the general public does not assist the Council in fulfilling
its mandate.
Regarding your inquiry on the position of Mayor Kim, his position is that the law
be followed.
Should you have any further questions or concerns, please call me.
s:dept\finance\opinions
O
~t Or N„~1
DOMINIC YAGONG ~hi,;;;~~ Phonc: (808) 961-8538
Counodnrember F&X: Eg~B~ 961-8912
DTI Oe tl~~~
OFFICF, OF THE COUNTY COUNCIL
County of HnH~ai'i
Uawai'i Counlr Duildiag
2J .4upuni Sorel
Hiln, Haicui "i 96.'20
October 9, 2002
Mr. James Arakaki, Chairman
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
Dear Jimmy,
I'm very concerned about the direction that we are headed for in terms of disclosure of
position salaries. I have expressed my concerns to Legislative Auditor Connie Kiriu as
well as Deputy Corporation Counsel Michael Kagami. It would be a terrible precedent to
disallow information that I strongly believe the people of the county of Hawaii have a
right to know as it relates to the county of Hawaii budget.
I realize a decision will be made one way or another and I want to express that I believe
this is a policy change decision. I strongly feel that if the disclosure of salaries as
currently practiced is changed, than the decision to change that policy should be
considered by the entire County Council.
I know we are awaiting the final opinion from Michael Kagami so I wanted to express
these views to you now. Please do not allow an arbitrary decision be made without the
consent and consideration of the full Council. The budget belongs to the people and as
such, all pertinent information needs to be disclosed as it is currently practiced in all four
counties in Hawaii.
~Wa est Aloha;
Dominic Yagong, Cou ci m b
Hawaii County Counc
DY/laa
xc: Councilmembers
Mayor Harry Kim
Connie Kiriu, Legislative Auditor
Michael Kagami, Deputy Corporation Counsel
r,„~,, ~ ,
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]AMES Y. ARAKAK[ ~!~•'~;~=^"•'!ty Phone: (808) 961-827?
Chairman&Presiding Officer ~G Fax: (808) 961-8780
.
.~+i'u'ri'+i
COUNTY COUNCIL
County of Hawai 'i
Hawaf'i County Building
25 Aupuni Street
Hilo, Hawaii 96720
September 20, 2002
TO: Council Mem
FROM: James Y. Ar ak
Chair
RE: Disclosure of P 'ion Salaries
For your information, I am transmitting the following:
1. An opinion to Legislative Auditor Connie Kiriu dated August 2, 2002, from
Deputy Corporation Counsel Michael Kagami related to the disclosure of
employee position salaries.
2. A follow-up clarification memo to Deputy Corporation Counsel Michael Kagami.
Essentially, Mr. Kagami is informing the Council that the position salaries usually in the more
detailed budget available to the public and the council should not be shown. The Council and the
Legislative Auditor's Office may receive the position salaries under confidential cover.
This new more restrictive procedure would be different from the other three counties whose
current practice is the same as Hawaii County's practice has been. I want to be certain that
restricting disclosure is on firm legal ground and it has the support of the Mayor.
If you wish to proceed in a different direction, please submit your recommendation to me in
writing immediately.
Thank you very much.
Att.
MSV OI
Harry Kim Lincoln S.T. Ashida
MaY°r •C Corporation Counsel
i~':; ' Gerald Takase
~>i of.M'~ Ascistnnt Corporation Cnunstf
(1~nlxn#~r ~f ~ttfuztti
OFFICE OF THE CORPORATION COUNSEL
IOl Aupuni Sveet, Suite 325 • Hilo, Hawaii 96720.4262 • (808) 961-8251 • FAX (808) 961-8622
August 2, 2002
CONFIDENTIAL MEMORANDUM
ATTORNEY/CLIENT PRIVILEGE & ATTORNEY WORK PRODUCT
TO: Connie Kiriu
Legislative Auditor
FROM: Michael S. Kagami ~-lam
Deputy Corporation Counsel
RE: Disclosure of Salaries
Your inquiry principally asks whether the salaries of County employees can be
disclosed to Council members and the legislative auditors office in the discharge of their
duties in the review and adoption of the County budget.
Section 92F-19 allows agencies to disclose government records, which would
include employees's salaries, to the county council. Section 92F-19 also allows
disclosure to any other government agency when the disclosure is necessary for the
performance of the requesting agency's duties and functions and: 1) it is compatible
with the purpose for which the information is collected; or 2) it is consistent with the
conditions or reasonable expectations of use and disclosure under which the
information was provided.
Section 92-19 would, therefore, certainly allow for the disclosure of salaries of
County employees to the Council members and the legislative auditors office in
discharge of their duties related to the review and adoption of the County budget.
Once this information is given, however, care must be taken so that it is not
disclosed to the general public. The Office of Information Practices has concluded in
Connie Kiriu
Page 2
August 2, 2002
the past that while the salary range of civil service employees must be disclosed,
pursuant to Section 92F-12(a)(14), the exact salary should not unless the public's
interest outweighs the employee's privacy interest. Section 92F-14 indicates that an
employee has a significant privacy interest in his or her financial information and I am
not aware of any public interest that might outweigh the employees privacy interest.
Any budget worksheets or work papers that note the salaries of specific
employees should not be disclosed to the public or media. Council members should
also be cautioned not mention the salary of a specific employee while the Council is in
open session and the Council's minutes should not specifically mention the salaries of
specific employees. Other than these specific concerns, Council members and
members of the legislative auditors office should just be reminded of their obligations
under the Code of Ethics under Article 15, Chapter 2 of the Hawaii County Code.
Under Section 2-83(c), no officer or employee shall disclose confidential information,
which includes an employee's salary, gained by reason of his or her official position.
s:dept/finance/opinions
w or
AL KONISHI
• . ~ CONSTANCE R KIRIU
Counh° Clerk Legislntrve Audiror
JAY MENDE °~~re;•a~'
Depary County Clerk
County of Hawai `i
Office of the County Clerk
?5 Aupuni Streee
Hilo, Htrvvai'i 967?0
Telephone: (8081961-8386 Farsimile (8C8J 961-8572
September 16, 2002
TO: Michael S. Kagami
Deputy Corporation Counsel
FROM: James Y. Arakaki ~
Chair
1
RE: Disclosure of Salaries ~
i
This is to follow-up on your opinion to Legislative Auditor Connie Kiriu dated August 2, 2002, in which
you stated that "[A]ny budget worksheets or work papers that nose the salaries of specific employees
should not be disclosed to the public or media." While you say that Section 92-19, HRS, allows for the
disclosure of salaries of County employees to the Council members and the legislative auditors office in
discharging their duties related to the review and adoption of the County budget, civil service employee
salaries cannot be disclosed to the general public. Nevertheless, the salary range of civil service employees
must be disclosed pursuant to Section 92F-12(x)(]4), HRS.
Because your opinion will limit the specificity of information usually disclosed by our County to the public
and the press, I want your assurances that:
1. You will successfully defend the County's right to withhold actual salaries of civil service
employees from public disclosure even if names are withheld and only position titles are given.
2. The proposal to eliminate all budgeted salaries, civil service or not, from the Projected
Position/Salary Requirements worksheet complies with state law. (see sample)
3. The proposal to show a position's 'Grade' (i.e. SR08, WS10) would be sufficient for the public
to determine salary range, and not showing the salary range complies with state law.
4. The proposal to print the word "UNFUNDED" next to those positions that would not be funded
or budgeted is consistent with state law. (see attached saniple)
5. The proposal to publicly disclose only the total amount of County/Federal/State-funded
positions in a program, division or department complies with state law.
6. Your position to withhold actual salaries of county employees from the public is supported by
the Mayor.
I ask for these assurances because we have learned that all other counties publicly disclose the
salary, job title and job number of all employees in their buffets. We do not want to be the only
County to move in a direction of reducing public disclosure when there may be other statutory
provisions that could be applied to retain public disclosure, such as Section 92F-14, HRS. In this
regard, you say you are not aware of any public interest that might outweigh the employees' privacy
interest. Arguably, the Council's mandate of conducting program reviews and its decision-making
role in the budgetary process may outweigh the employees' privacy interest. This Council is the
only County Council in the state required to conduct program reviews by Charter. The decision to
restrict information formerly open to the public should be made without haste and with tirm legal
standing.
Thatlk you for your prompt attention and reply.
cc: Corporation Counsel Lincoln Ashida
Mayor Harry Kim
Finance Director William Takaba
Council Members
Legislative Auditor Connie Kiriu
2
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F O S I T I O N 1 N F O P M A i I O N
A000UNT 8U0 GETED
~`_N i_ POSITION ]TLE GPADE NUMEER SA LARD
~2'J
SCALE ATIENDANI SR00 5604.51
3621 SCALE ATTENDANT SROB SbC4 .51
-QG3 SOL1G NSTE iRNSF STP ATTNDhi' BOOS 5604.51 UNFUISLEL
.063 SOLID WSTE TRNSS STA ATTNDNI 8C05 5604.51
.O6L SOLLN 415TE 'FF. STA ATiD7 TEMF BCOS 5604.51 - - VACANT - -
EQUIPMENT ORERATOR 111 0C10 Sb04 .51 VACANT ITNFUNJFu
J66 EaUIPMENT OPERA iDR Ili TEMP 0010 5664.51 VACANT
SOLID WASTE lJ0 RK1 NG SUPVR IJS1C 5604_51
~OcE nOLlt~>JA STE wGRKI NG SUPVR ll510 5604.51
rEF PAIRGLL EXPENSES:
OvEP TIME 5604.51 15,000
HOLICAY 5604.51 M1O, OOD
T EI4P GR AF'Y ASSIGNMENT 5604.51 4,000
70 TAB COU N7° EUN;EO FOS1T;oNS 9 $ 165,D19
TOTAL COUNTY OTHER PAYROLL EKPEMSES: $ 29,000
TOT p~~ FEG ER AL/STATE FUNDED POST 710NS:
TOTP_ FEDERAL/STATE OTHER PAYROLL EXPENSES:
i C i A L S: 9 S 194,019
~wYY or y4
AL KONISHI`•• i~~~ CONSTANCE R. KIR[U
Cwsnty Clerk Legislative Audator
JAY MENDE
~ O~~M~
Deputy County Clerk
County ojHawai`i
Office of the County Clerk
25 Aupuni S7reet
Hilo, Hawaii 96720
Telephone: B08J 961-8386 Facsimile: (808) 961-8572
July 18, 2002
TO: Michael Kagami
Deputy Corporation Counsel
FROM: Constance R Kiri it
Legislative Auditor
RE: Request for Opinion
Disclosure of Salaries
The purpose of this memorandum is to follow up on your letter dated June 18, 2002, to Finance Director
William Takaba, in which you stated that the budget report, in its current form, should not be made
available because it discloses the specific salary for a specific civil service employee.
To clarify, the council members receive the following documents in conjunction with the council's
mandatory program review and annual operating budget:
l . A bill for an ordinance to establish an operating budget for the County of Hawaii
containing the following.
• A general summary and comparative statements of revenues and expenditures
• A list of position changes
• The line item account of revenues and expenditures
• Further authorizations or conditional language
2. The operating budget proposal (or program narratives)
3. Six-Month Progress Reports for the Programs
4. Detailed budget worksheets that expand on the line item accounts given in Item #l .
These worksheets also include the Projected Position/Salary Requirements for the fiscal
year in which position numbers, position titles, pay grades, account numbers, status
(vacant) and budgeted salaries are provided.
The fourth item, when budgeted salaries are shown, has been problematic because the worksheets are
treated as a document subject to public disclosure, and the specific salary information in the Projected
Position/Salary Requirements can sometimes be matched with the specific employee. Opinions by the
Office of Information Practices and by the Officc of the Corporation Counsel conclude that disclosure of
a civil service employee's fiscal record (income) would constitute an unwarranted invasion of personal
privacy unless the public interest to be considered "sheds light upon the workings of government".
[Sections 92F-13, 92F-14(b), and 92F-12(a)(14), HRS]
To this end, a meeting was held with William Takaba, Nancy Crawford, Gary Takamura, Gary Tom,
Rodney Oshiro, Rory Flynn and you to determine the extent and form of information to be disclosed to
the council members and the Legislative Auditor's Office. We are requesting an opinion on the following
issues as a result of that meeting:
Budget and program reviews are a legitimate and mandatory legislative government function.
Accordingly, the council members or the legislative auditor's office may wish to know the salary(ies) of a
position(s) in order to more specifically assess and review the efficiency or effectiveness of a program, its
objectives, its program measures, resources and expenditures.
(a) If the council is required by Charter to critically review every program supported
wholly or partially by county funds, and to review and adopt an operating budget,
which presents a complete financial plan for the current operations of the county, would
the disclosure of the salary(ies) of position(s) in each agency or program qualify as a
public interest that would shed light upon the workings of government?
(b) If you have answered `no' to Item (a), under what statutory authority may the exact
budgeted salaries of positions in a program or agency be released by the finance
director to a member of the council, the council as a whole, or the legislative auditor's
office?
(c) Continuing with Item (b), what procedures, instructions, or guidelines should be taken
by the finance director to ensure confidentiality when the budgeted salaries of positions
in a program or agency are released to a member of the council, the council as a whole,
or the legislative auditor's office?
(d) Are the budget worksheets and budget work papers considered a government record
that requires disclosure?
(e) [f you have answered `yes' to Item (d), but `no' to Item (a), will the attached sanitized
format of "Projected Position/Salary Requirements" satisfy Section 92F-12(14), HRS?
Thank you in advance for your prompt reply.
Att.
cc: ~ Council Members
Finance Director Bill Takaba
Budget Administrator Gary Takamura
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MAZIID IC IIIRONO MOCA~T. DAVENPORT GFA1'
LI79UTliNANT GOVERNOR STATE OF HAWAII DIADCTOA
OFEFCE OF TIME LIEUTENANT GOVERNOR
OFFICE OF INFORMATION PRACTICES
NO. 1 CAPITOL DISTRICT BUILDING
250 SOUTH HOTEL 6T2CLsT, SUITE 107
HONOLULU, HAWAII 96813
TF;LEPHONE~ 808686-1400 F'AX: 808~686~1412
N'.-MAIL: 2il-~?_sl _{i._.II I gv
R~E65ITF «e ,-,L r Ya ris/qil;
July 5, 2002
Al Konishi
County Clerk, County of Hawaii
Hawaii County Building
25 Aupuni Street
Hilo, Hawaii 96720
Dear Mr- Konishi:
The Office of Information Practices ("OIP") received your request for an
opinion dated May 29, 2002. As you had an immediate need for an opinion, I
provided you with general oral advice during a telephone call between us on
June 3, 2002. This letter, while not an opinion of this office, will confirm that
general oral advice.
FACTS
Your letter indicates that the Hawaii County Council ("Council")
considered the FY02-03 operating budget and during the course of debate
requested salary information abcut an individual who wanks for the Hav:aii
County Police Department (`Police Department"). Initially, the salary of a
particular position with the Police Department was discussed during a
meeting of the Council open to the public; later on during the same meeting
the name of the incumbent in that Police Department position was
mentioned. Subsequently, West Hawaii Today published the name of the
person and salary. On May 29, 2002, you received a telephone call from the
Hawaii Government Employees' Association about the appropriateness of the
disclosure and whether you intended to include the information in the
minutes of the Council meeting.
Mr. Al Konishi
July 5, 2002
Page `2
GENERAL DISCUSSION
When an agency is considering disclosing information that carries a
significant privacy interest, the Uniform Information Practices Act
(Modified), chapter 92F, Hawaii Revised Statutes ("UIPA") requires that
agency to balance the public's interest in that information against the privacy
interest. Haw. Rev. Stat. § 92F-(14(a) (Supp. 2001). The public's interest
that should be considered by the agency is whether the information would
shed light on the operations of the government agency. See OIP Op Ltr. 99-6
(Oct. 25. 1999). In that opinion letter we said:
When balancing the privacy rights of an individual
against the public interest in disclosure, the public
interest to be considered is that which sheds light
upon the workings of government.
Id. at 3. The OIP based this conclusion upon the two basic policies served by
the UIPA, which are to "[p]romote the public interest in disclosure" and to
"[e]nhance governmental accountability through a general policy of access to
government records." Haw. Rev. Stat. § 92F-2 (1993).
While the Legislature declared that "it is the policy of this State that
the formation and conduct of public policy--the discussions, deliberations,
decisions, and action of government agencies--shall be conducted as openly as
possible", it also acknowledged 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, as embodied in section 6 and section 7 of Article I of
the Constitution of the State of Hawaii." Haw. Rev. Stat. § 92F-2 (1993). See
also OIP Op. Ltr. No. 93-20 at 7 (Oci. 21, 1993).
The OIP has previously opined that the public interest underlying the
UIPA is "not fostered by disclosure of information about private citizens that
is accumulated in various government files but that reveals little or nothing
about an agency's own conduct." Id. at 7, Op. Ltr. No. 89-16 (Dec. 27, 1989),
quoting United States Der~'t of Justice v. Reporters Commfor Freedom of the
Press, 9.89 U.S. 749 (1989).
If the public's interest in the information outweighs the privacy
interest, then disclosure would not be a clearly unwarranted invasion of
privacy. Haw. Rev. Stat. § 92F-(14(a) (1993). On the other hand, should the
privacy interest outweig$ the public's interest, then disclosure may be a
Mr. Al Konishi
July 5, 2002
Page 3
clearly unwarranted invasion of privacy for which the Council may be liable
under the Constitution of Hawaii, Article 1, Section 6.
Section 92F-14, Hawaii Revised Statutes, indicates that a person has a
significant privacy interest in his or her financial information. We assume
that the person about whom the information was disclosed is a civil servant.
In the past the OIP has concluded that while the salary range of civil service
servants must be dlisclosed, as required by section 92F-12(a)(14), Hawaii
Revised Statutes, the exact salary should not unless the public's interest
outweighs the privacy interest aS set forth under sections 92F-13(11
and -14(a) Hawaii Revised Statutes.
From our discussion, it appears there was no request for the
information. Thus, the issue you face is whether you are required to include
that information in the minutes of the Council's meeting. The UIPA does not
require you to disclose this information when there is no request for the
information. Nevertheless, Hawaii's "Sunshine Law", chapter 92, Hawaii
Revised Statutes, governs this issue. Section 92-9, Hawaii Revised Statutes,
requires that the minutes of the meeting give a "true reflection of the matters
discussed at the meeting and the views of the participants." That section also
requires that the minutes reflect, among other things, the "substance of all
matters proposed, discussed, or decided; and a record, by individual member,
of ally votes taken.
Therefore, if the context of the meeting does not require the name or
identification of the person to be linked to the exact salary and recorded in
the minutes, and no member of the Council requests that this information be
placed in the minutes, then you have the discretion not to put that
Ii1fnTIna tivri lri file inlnute.S Of the m22ting.
Should you have any questions regarding this letter, please contact me
at your convenience.
Regards,
Moya .Davenport Gray
Director
MTDG: ankd
iK>u~}' Klrll l~
,yQy„r Lincoln S.T. Ashida
Cnrporatinrt Giun.vd
Gerald Takase
~ x•N~ A,vsuranr Cnrpnralinn Cnunsd
~~ltt[~~? II~ ~tifl7Mit
OFFICE OF TIC CORPORATION COUNSEL
101 Aupuni Sheet, Suile 3Z5 • Hilo, Hawau 96720.4262 • (808)961-8251 • FAX (808) 961-8622
llf(DEPARTMEfJT OF RNANCF.
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TO: William Takaba, Finance Director Acnor! a,: _
Department of Finance FlLE: ~I^/1 D$ ~CSiN~~
FROM: Michael S. Kagami, Deputy Corporation Counsel ti~
DATE: June 18, 2002
RE: Projected salary reauirements~ COfD Counsel Entry No 2225
The budget report, in its current form, should not be made available because it
discloses the specific salary for a specific civil service employee. While the report does
not identify the employee by name, he/she could be easily identified by finding out who
is employed in the identified position.
Specific salary amounts, however, may be needed by the Council when dealing with the
County budget. We would need to work with the Council so that they can have the
information they need while also protecting the employee's privacy.
Please call me if you have any questions or concerns.
MSK:mkk
s:\deptslfinancelopinionsUh.to takaba re contents of budget rpt.\6-18-02\MSKmkk
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Harry IGm ,'~04' Lincoln S.T. Ashida
Mayur Corporafinn Counsel
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OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-0262 • (808) 961-8251 • AAX (808) 961-R622
June 3, 2002
CONFIDENTIAL: ATTORNEY-CLIENT
PRIVILEGE AND WORK PRODUCT
AI Konishi
County Clerk
County of Hawaii
25 Aupuni Street
Hilo, HI 96720
Dear Mr. Konishi:
Re: Disclosure of Salaries
We are in receipt of your May 29, 2002 letter requesting an opinion on the
disclosure of salaries of public employees to the public. The issues addressed
are those stated in your letter.
ISSUE: Whether it is a violation of a significant privacy right for a person's
name and exact salary to be disclosed by County officials in a
County Council session?
As a general principle, disclosure of government records is not required if
disclosure would constitute a clearly unwarranted invasion of personal privacy,
An individual has a significant privacy interest in his or her personnel record and
in his or her fiscal (income) record. See Sections 92F-13 and 92F-14(b), Hawaii
Revised Statutes (herein, "HRS"). There may be an exception to this principle
where salaries of public employees are involved, or where the public interest in
disclosure outweighs the privacy interest. See Sections 92F-12(a)(14) and 92F-
14, HRS, which allows disclosure of public employees' salaries.
We do not render any opinion on whether there was any violation of a
significant privacy right. We understand that the employee in question is a civil
service employee, and for the limited purposes of this situation, we simply
conclude that under Section 92F-12(a)(14), HRS, disclosure of salary of a civil
service employee should be limited to disclosure of the employee's salary range.
Mr. AI Konishi
June 3, 2002
Section 92F-12(a)(14), HRS, states that:
"...each agency shall make available for public inspection and duplication
during regular business hours... [t]he name, compensation (but only the
salary range for employees covered by or included in chapters 76
and 77, and sections 302A-602 to 302A-640, and 302A-701, or
bargaining unit (8))..."
Chapters 76, 77, and 302A, HRS, refer to employees covered by the civil service
laws and to employees of the Department of Education, respectively.
Guidelines (copy enclosed) from the Office of Information Practices
(herein, "OIP") provide that personnel records shall be disclosed as follows:
1. For civil service employees, their salary range.
2. For all other employees, their actual gross salary.
OIP has rendered several opinions, which deal with non-civil service
employees, but imply that disclosure of salaries of civil service employees should
be limited to disclosure of their salary range.
On December 30, 1991, OIP concluded that the University of Hawaii at
Manoa was not required to disclosed the exact salaries of its athletic coaches
and athletic director since they were covered by Chapter 304, HRS, relating to
university faculty. Although the coaches and athletic director are not civil service
employees, Section 92F-12(a)(14), HRS, provided that disclosure of salaries of
employees covered by Chapter 304, HRS, is limited to disclosure of their salary
range. Chapter 304, HRS, has since been deleted from this section. Although
not directly related to the issue at hand, OIP noted that under Section 92F-
12(a)(14), HRS, disclosure of salaries of civil service employees is limited to
disclosure of their salary range.
On November 20, 1990, OIP concluded that the Research Corporation of
the University of Hawaii was required to disclose the exact salaries of their
employees since they were non-civil service employees. Although not directly
related to the issue at hand, OIP noted that under Section 92F-12(a)(14), HRS,
disclosure of salaries of civil service employees is limited to disclosure of their
salary range.
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Mr. AI Konishi
June 3, 2002
On July 27, 1996, OIP concluded that the exact salaries of non-civil
service employees employed in the Office of the Mayor must be disclosed. OIP
rejected the argument that since the employees are included in the position
classification plan under Chapter 77, HRS, they are entitled to the protection of
Section 92F-12(a)(14), HRS.
ISSUE: If so, whether the Council is obligated to prevent republication of
the information in its minutes.
Per your request, we discussed this matter with Ms. Moya Gray of OIP.
Because of her unfamiliarity with the entire background of this case, Ms. Gray
was reluctant to give an opinion on this matter. Ms. Gray suggested that the
practice of itemizing positions and salaries in the budget bill be reviewed
inasmuch as this practice makes it too easy to inadvertently identify the
employee involved.
We note that employee's union representative, HGEA, was concerned
about the inclusion of the employee's name in the Council minutes. We
understand that the employee's name and salary were disclosed at the Hawaii
County Council meeting and were published in a news article in the West Hawai i
Today. To prevent any further publication, Ms. Gray suggested, and we concur,
that the employee's name be deleted from the Council minutes, and that the
minutes simply reflect that there was a discussion of the salary for this position.
You may need to review the Council rules and procedures for amending the
minutes. This recommendation would apply to any other County publication
identifying the employee involved, including rebroadcast of the meeting. You
may wish to investigate the possibility of editing a portion of the broadcast, rather
than simply deleting the broadcast in its entirety.
The County Council should also be cautioned to follow the requirements
of Section 92F-12(a)(14), HRS, in discussing salaries and names of public
employees.
Please call me if you have any questions. Thank you.
Sinerely,
Lester Ishado
Deputy Corporation Counsel
s:dept\---\Llmisc\letter to konishi re public records 6-02
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