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HomeMy WebLinkAbout2005-01 Disclosure of Exact Salaries OIP Opinion 05-03 +�:`••`•''• Lincoln S.T.Ashida Har ry Kim ` - Corporation Counsel Mayor Gerald Takase .,;:;; Assistant Corporation of'N��'� Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo,Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622 February 3, 2005 Corporation Counsel Published Opinion No. 05-001 Honorable Michael R. Ben Director of Personnel County of Hawaii 101 Pauahi St. Hilo, HI 96720 Dear Mr. Ben: RE: OIP Opinion No. 05-03 Our Entry No.: WRK 05-9200 Via memorandum dated February 1, 2005, the Department of Civil Service has sought guidance from the Corporation Counsel whether the exact salaries of civil service employees should be publicly disclosed, pursuant to Office of Information Practices (hereinafter"OIP") Opinion No. 05-03. For reference purposes, the Department of Civil Service memorandum and the aforementioned OIP opinion are enclosed for reference purposes. OIP Opinion No. 05-03 essentially reverses prior OIP opinions to the extent that prior opinions of the OIP mandated non-disclosure whenever there was a non-constitutionally protected significant privacy interest. OIP Opinion No. 05-03 holds that non-disclosure would only be mandated in constitutionally protected situations (i.e., when a record or the information contained in that record is protected by the right to privacy provision of the Hawaii State Constitution). The OIP presently recognizes that the Uniform Information Practices Act (hereinafter "UIPA", and referred to as the "Statute" in OIP Opinion No. 05-03) is a law promoting the disclosure of records and not one requiring non-disclosure. In Hawaii County, our offices have jointly and previously recommended to the Hawaii County Council and Finance Department that (1) the exact salaries of elected and appointed employees may be publicly disclosed, and (2) only the salary ranges of civil service employees may be publicly disclosed. As a result, Hawaii County is an Equal Opportunity Employer and Provider the Finance Department Budget Division provides the Council (and the public, since the Charter requires this document to be a public record) budget documents consistent with the aforementioned advisory. Our offices have also previously opined that such a practice is consistent with Section 92F-12(a)(14), Hawaii Revised Statutes, as amended (hereinafter "HRS"), which provides in pertinent part as follows: Any other law to the contrary notwithstanding, each agency shall make available for public inspection and duplication during regular business hours: The name, compensation (but only the salary range for employees covered by or included in chapter 76, and sections 302A-602 to 302A-640, and 302A-701, or bargaining unit [8]), job title, business address, business telephone number,job description, education and training background... O/P Opinion No. 05-03 At the onset, we note that much of the legal analysis in OIP Opinion No. 05-03 focused on the question of whether the Kauai County Charter provision requiring public disclosure of the budget (which contained the exact salaries of civil service employees)was repugnant to HRS Section 92F-12(a)(14). Section 19.02 of the Kauai County Charter (erroneously cited as "Section 9.02" in OIP Opinion 05-03), provides in pertinent part as follows: The proposed annual budget ordinance, consisting of the operating and capital budgets for the ensuing fiscal year, shall be prepared by the director of finance and submitted by the mayor to the council, together with a budget message and any proposed revenue measure, on or before the fifteenth day of March of each year. Similar requirements are found in Hawai'i County's Charter. Article X, Section 10-2 of the Charter (2000), provides in pertinent part as follows: No later than March 1 of each year, the mayor shall submit to the county council: (1) An operating budget for the ensuing year. (2) An operating program for the ensuing three fiscal years. (3) A capital budget for the ensuing fiscal year. (4) A capital program for the ensuing six fiscal years. (5) An accompanying message. Both Charter provisions are silent on whether the names and exact salaries of each County employee must be submitted to the Council. Apparently, on Kauai, the Council has requested this information, in the form of a "detailed computer run,"which presumably contains the names, positions, and exact (or proposed) salaries of all employees. Kauai's Charter requires this proposed annual budget (which is essentially legislation) to be public, via Section 19.07(A) (recited in pertinent part only): Upon receipt of the proposed annual budget, the Council shall immediately publish a notice in a newspaper of general circulation in the county, setting forth (1) a summary of the estimated revenues, including any new sources of revenues, and expenditures; (2) that copies of the budget are available at the office of the county clerk; (3) the date, time and place at which the council will commence its public hearings upon the proposed budget, which shall not be less than ten days after the date of the publication of such notice. Similarly, Hawaii County's budget ordinance is made public via Article X, Section 10-2(d) of the Hawaii County Charter (2000): Upon submission, the budgets, the programs and message shall be a public record in the office of the clerk of the county council and shall be open to public inspection. The mayor shall at the same time make available copies of the budgets, the programs and message for distribution to interested persons. In Hawaii County, the names and exact salaries of civil servants have not been provided to the Council. You are correct in noting that we have historically taken the position that this information could not be provided to them, since these employees had a significant privacy interest in this information. I surmise your present request is what to do, in light of OIP Opinion No. 05-03, in the event our Council or a member of the public makes a request for this detailed information. The "balancing" that is required under such circumstances was not done in OIP Opinion No. 05-03, since the OIP believed the Kauai Charter provision "trumped" the UIPA in favor of disclosure. Thus, we in Hawaii County are faced with the task of balancing the employee's privacy interest against the public's interest in disclosure. Balancing an employee's right to "privacy"against the public's right to know As a starting point, it is a foregone conclusion our laws do not consider financial information (i.e., the exact salaries) of government employees, whether civil service or not, to be protected under the Right to Privacy clause of the Hawaii State Constitution. Nakano v. Matayoshi, 68 Hawaii 140, 149, 706 P.2d 814, 819 (1985). Thus, the salient inquiry is whether, on balance, there are more relevant factors favoring public disclosure of this information, or more factors favoring protecting the privacy interests of our employees. Simply put, we need to weigh these personal privacy interests against the public's right to know. Some privacy interests advanced by employees include (1) a general sense of security in knowing that the whole world does not know how much money they earn, (2) a desire to keep all financial information private so as to avoid familial conflict, (3) a desire to keep salary information private so as to avoid conflict with fellow co-workers, and (4) a desire to keep exact salaries private so reductions in pay or failure to obtain step movements due to disciplinary reasons do not surface. OIP Opinion No. 05-03 does not mandate, as a general matter, that the exact salaries for civil service employees be disclosed. In fact, although OIP Opinion No. 05-03 may have supplanted former OIP opinions concerning the issue of whether the UIPA prohibited disclosure of records, HRS Section 92F- 12(a)(14) remains the law of the land. As cited previously, this provision of the UIPA essentially provides only that a government agency may choose to withhold the exact salaries of civil servants, but must nonetheless release the salary ranges for these employees. Thus, it logically follows our County may choose to withhold from the public the exact salary information for civil service employees. On February 3, 2005, 1 conferred with Leslie Kondo, director of the Office of Information Practices, concerning OIP Opinion No. 05-03. According to Mr. Kondo, with respect to HRS Section 92F-12(a)(14), he believes, and we agree, that the fact the Legislature has chosen to specifically exempt the exact salaries of civil servants from public disclosure is a strong indication that the personal privacy interest of these employees outweighs the public's right to know. Thus, Mr. Kondo is of the opinion that on balance, public disclosure would not be warranted. Mr. Kondo further stated that our County's practice of providing a separate, detailed accounting of the projected and budgeted salaries for civil service employees under confidential cover (separate from the budget worksheet which is required to be a public record pursuant to our Charter) is an acceptable and preferred practice. In fact, Mr. Kondo commented that this is the practice of the State of Hawaii. Mr. Kondo further commented that he could not understand why Kauai does not follow this practice of providing their Council detailed information under confidential cover, and transmitting the official document intended for public consumption under a separate cover. Summary Hawaii County's present practice of providing two separate communications to the Council should continue. One communication contains more detailed salary information (the proposed or budgeted salaries of civil servants), and the other does not. The latter report references the employee's bargaining unit number. Salary schedules of the respective bargaining units are provided, and salary ranges may thereupon be determined. This latter communication is a public record, pursuant to Section 10-2(d), of our Charter. In the event the Council requests even more detailed information in the confidential communication (e.g., the names of the employees), departments are urged to consider this a request for information pursuant to HRS Section 92F-19. Thus, if it is determined the Council (or other County department or agency requesting the information) needs this information in order to perform its responsibilities, disclosure may be appropriate. Nonetheless, this data will continue to remain a non-public record, and the privacy interests of the employees will remain protected. Requesting department or agencies (or the Council) should be aware of the restrictions of HRS Section 92F-19(b), on the handling of this confidential information. The unauthorized public dissemination of this information may result in severe sanction to the requesting and receiving department or agency. If a member of the public requests the exact salary of a civil servant, we should respond by not providing this information, and explaining that such information is protected from disclosure by our laws, as Mr. Kondo of the OIP has so opined. Please contact me if further discussion or assistance is needed. Thank you for raising this very important issue. Very truly yours, Q19___ LINCOLN S. T. ASHIDA Corporation Counsel Encls. c: Department of Finance Budget Division (w/ encls.) S: Departments/Corp CounseULSA Misc.Corresp./Letter to M Ben re salary information PUBLISHED 2-2-05/LSAmr County of MTwat I-Department of avdService Inter0i ff�ice Memo F`r ; 70: Lincoln S.t Ashida, Corporation Couns:05 f ES 2 AM 10 `f 2 3WN: Michael R. Ben, Director of Personnel DAB E: February 1, 2005 BY- SWIJEC : OIP Opinion 05-03 The Office of Information Practice issued its Opinion Letter No. 05-03 on January 19, 2005. The opinion represents a shift from previous OIP opinions in that the exceptions to public disclosure of a particular record found in §92F-13, HRS, are not to be construed as prohibiting disclosure. Rather, an agency is to use discretion on whether a "covered" exception in §92F-13, HRS, may be disclosed or not. The opinion goes on to discuss, to a limited extent, how this discretion is to be exercised. The instant subject of the OIP opinion is that of specific salaries of civil service employees. In my reading of the opinion, since public employee salaries are a legitimate public concern, and disclosure of these salaries would not violate the employees' constitutional right of privacy, and that the purpose of Chapter 92F, HRS, is one of disclosure, the specific salaries of civil service employees may be disclosed. This opinion is contrary to what both your office and I have advised the County Council and others in the past (that disclosure of specific civil service employee salaries is prohibited). However, the strong wording of the opinion is one of exercising discretion. I am requesting guidance from your office as to when we should allow disclosure of specific civil service employee salaries and when we should not. The OIP opinion, while noting that individuals do not have a constitutional right to privacy with respect to their specific salary, notes that "employees" may have a significant privacy interest in their exact salary. I seek guidance too on the specific situation where an individual citizen asks for a civil service employee's specific salary vs. other interest groups seeking the same information. I have enclosed your office's work request form for this request. sst Enclosure Hawaii County is an Equal Opportumty Provider and EttP(ojw OF N� r � UWA UNGLE STATE OF HAWAII GOVERNOR OFFICE OF THE LIEUTENANT GOVERNOR JAMES P-A10NA.JIL UeUTENAMT GOVERNOR OFFICE OF INFORMATION PRACTICES ` �°O NO.1 CAPITOL DISTRICT BUILDING 250 SOUTH HOTEL STREET.SUITE 107 HONOLULU,HAWA19 96813 Telephone: (808)586-1400 FAX (808)586-1412 E-MAL_ oipOhawatgov www.haw".9w1b p January 19, 2005 Mr. Michael Tresler Director of Finance County of Kauai 4444 Rice Street, Suite 280 Lihu'e, Hawaii 96766 Re: Disclosure of Exact Salaries to the Kauai County Council (RFA-G 99-006) Dear Mr. Tresler: This is in reply to the request by the Department of Finance, County of Kauai. ("Finance") for an opinion concerning the disclosure of certain information by Finance to the Kauai County Council("Council"). Specifically, Finance asked whether, under the Uniform Information Practices Act (Modified), chapter 92F, IM ("UIPA"), it is allowed to provide the Council with the job titles of county employees, including covered employeesl, and the exact salaries corresponding to those positions. We understand Finance's concern about disclosure of the information to the Council to arise because of a provision in the Revised Charter of the County of Kauai ("Charter") that requires the Council to make the information publicly available upon its receipt from Finance and the relative ease by which the public can determine the exact salaries of specific county employees, including covered employees.2 The term"covered employees"refers to those employees"covered by or included in chapter 76 and sections 302A-602 to 302A-640, and 302A-701, or bargaining unit(8)." Haw. Rev. Stat. § 92F-12(aX14)(Supp. 2003). s While the UIPA requires disclosure of only the salary range of covered employees, for exempt employees,i.e.,employees who are not covered employees,section 92F-12(aX14), HRS, requires disclosure of, among other things,their names,job titles and exact salaries. Haw. Rev. Stat. i §92F-12(aX14)(Supp.2003). Because their exact salaries are public,disclosure of information from hich exempt employees'exact salaries can be determined is consistent with the UIPA and raises no for us to consider. This opinion,therefore,is limited to disclosure of the information about e ed employees and their exact salaries. OIP Op. Ltr. No. 05-03 0 . Mr. Michael Tresler January 19, 2005 Page 2 ISSUE PRESENTED Whether a county charter provision requiring disclosure of the exact salaries of covered employees is contrary to the UIPA. BRIEF ANSWER No. The ITIPA is premised on disclosure, i.e., on allowing public access to records maintained by state and county agencies. While the UIPA confers on an agency the discretion to withhold certain types of records (or certain types of information contained in records), it does not require an agency to deny access to those records. Accordingly, we do not believe that a county charter provision that requires disclosure of records that could otherwise be withheld under the UIPA violates or otherwise contradicts the statute. FACTS The Charter requires that the director of finance prepare a proposed annual budget ordinance(`proposed budget'), consisting of the operating and capital budgets for the ensuing fiscal year, and that the proposed budget be submitted by the mayor to the Council. Charter§ 9.02.A. (1992). The Charter also requires the Council, upon receipt of the proposed budget, to publish a notice in the newspaper, announcing, among other things, that the proposed budget is available at the county clerk's office. Charter§ 19.7 (1992). You have advised us that, at the Council's request, the proposed budget consists of a"detailed computer run"that, among other things, lists each of the positions held by county employees by job title and the exact salary corresponding to the specific positions You have also advised us that the budget passed by the Council, i.e., the budget ordinance, also includes all of the positions and corresponding salaries.4 It is our understanding that neither the proposed budget H We understand that the operating budget must include salaries and other expenses necessary for the upkeep,maintenance and operation of the departmental or agency functions. Charter§ 19.04(1992). While we do not read the Charter to require that the exact salary of each county position be included in the proposed budget,the Council apparently interprets the Charter to require that such information to be part of the proposed budget. Accordingly, for the purposes of this opinion,we have considered the Charter to require the proposed budget to include the exact salaries of every county position. 4 The OIP previously concluded that legislative enactments,such as the budget ordinance,are public,without segregation or redaction of any information contained therein. OIP Opinion Letter Number 91-17(Oct. 7, 1991)(salary information about covered employees contained in budget ordinance is public). - OIP Op. Ltr. No. 05-03 Mr. Michael Tresler January 19, 2005 Page 3 nor the budget ordinance identify the name of county employee holding the specific job title.5 Finance is concerned that the exact salary of a covered employee can easily be determined. Specifically, Finance correctly notes that an employee's name and job title, including a covered employee's name and job title, are public and must be disclosed upon request. In many instances, especially where there is only one employee with a particular job title, that information can be cross-referenced against the information contained in the proposed budget to easily determine a specific employee's exact salary. DISCUSSION The Council's practice'of requiring the job title of every County employee and the corresponding salary earned by that employee to be listed in the proposed budget raises a series of issues for us to consider. Because the proposed budget, once submitted to the Council, is required to be available to the public by the Charter, Finance's disclosure to the Council is, in essence, disclosure to the public. Moreover, although the information contained in the proposed budget does not identify the person holding the particular position, for the purposes of our analysis, because of the relative easy in determining that information through other public records, we have considered the proposed budget as if it identified the covered employee by name and his or her exact salary. We, therefore, have considered the issue raised by Finance's request to be whether Finance is allowed to withhold from public disclosure the exact salaries of covered employees notwithstanding the Charter's requirement that the information be publics That inquiry, stated another way, is whether the Charter's requirement that the proposed budget, containing the exact salary information, be available to the public violates the UIPA. 5 The Office of the County Attorney provided us with the most recent budget ordinance, Ordinance No. B-2004-621, adopted by the Council on May 24, 2004 and approved by the Mayor on May 28, 2004. That ordinance lists all of the County positions and the corresponding salaries for each position, including those positions held by covered employees, and incorporates the detailed computer run submitted by Finance. 6 The issue about whether Finance is authorized to share the exact salary information with the Council is addressed by section 92F-19(a)(6), HRS. That section allows an agency to disclose records (and information) that would otherwise be protected from disclosure It]o the legislature, or a county council, or any committee or subcommittee thereof[.]" Haw. Rev. Stat. § 92F-19(a)(6) (1999). While, generally, inter-agency disclosure under section 92F-19, HRS, is discretionary, i.e., it does not require disclosure by one agency to another, because the UIPA is premised on disclosure, as discussed herein, we believe that the Charter's requirement that Finance provide the proposed budget to the Council is consistent with the UIPA. OIP Op. Ltr. No. 05-03 Mr. Michael Tresler January 19, 2005 Page 4 In mandating that the exact salaries of exempt employees be public, the legislature specifically required disclosure of only the salary range of covered employees. Specifically, the statute provides: Any law to the contrary notwithstanding, each agency shall make available for public inspection and duplication during regular business hours: [tJhe name, compensation (but only the salary range for employees covered by or included in chapter 76, and sections 302A-602 to 302A- 640, and 302A-701, or bargaining unit (8)),job title, business address, business telephone number,job description, education and training background, previous work experience, dates of first and last employment, position number, type of appointment, service computation date, occupational group or class code, bargaining unit code, employing agency name and code, department, division, branch, office, section, unit, and island of employment, of present or former officers or employees of the agency[.] Haw. Rev. Stat. § 92F-12(a)(14) (Supp. 2003). By requiring disclosure of only their salary ranges, the legislature implicitly appears to have recognized that covered employees possess a privacy interest in their exact salaries.? Generally, where an individual has a significant privacy interest in a record (or in information contained in a record), an agency is required to balance the privacy interest against the public's interest in disclosure and may withhold the record where the person's privacy interest is not outweighed by the public's interest. Haw. Rev. Stat. § 92F- 13(1) (1999). In this case, however, we need not determine whether the covered employees' privacy interest in their exact salaries is significant and, if so, whether that privacy interest outweighs, the public's interest in disclosure of their exact salaries. Instead, our analysis is concentrated solely on the Charter's requirement that the proposed budget, which includes the exact salaries, be made available to the public. We must determine whether that requirement, which effectively denies Finance the ability to withhold the proposed budget (or information contained in the record) as it may be permitted to do in accordance with one or more of the UIPA's exceptions, 7 We recognize that the proposed budget contains the proposed salaries of Count}, employees, which may or may not be the actual salaries that those employees earn in the upcoming fiscal year. We, however, have assumed that the proposed salaries most frequently become the actual salaries and/or may be the exact salaries that the employees earn currently. Therefore, for the purposes of this opinion, we have analyzed Finance's request as if the covered employees'salaries as contained in the proposed budget are their actual salaries. OIP Op. Ltr. No. 05-03 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 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 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 Mr. MiChae1 TreSler January 19, 2005 Page 8 4' the UIPA.is disclosure. The legislature, in enacting the UIPA, noted that the statute "will provide clear recognition of...its primary goal of ensuring access to government records," Conf. Comm. Rep. 112-88, 14th Leg., 1988 Reg. Sess., Haw. H.J. 817 (1988), and confirmed that goal by expressly stating that the intent of the statute is to "[proomote the public interest in disclosure[.]" Haw. Rev. Stat. § 92F-2 (1999). Given that the statute is intended to "promote"public access to government records, we do not believe that requiring disclosure of records that could otherwise be withheld is contrary to the UIPA or its intent. See, e. .. Pacific International Services v. Hurin, 76 Haw. 209, 873 P.2d 88 (1994) (state law did not preempt county ordinance mandating greater insurance coverage than required by state law). We note, however, that our conclusion is limited. As discussed above, in addition to its primary goal of protecting access, the UIPA is intended to recognize the right to privacy contained in Hawaii's Constitution. Charter provisions or county ordinances that require greater disclosure than is required by the UIPA may run afoul of the UIPA or the Constitution by requiring disclosure of records(or information contained therein) that fall within the constitutional right to privacy. CONCLUSION We conclude that disclosure of the exact salaries in the proposed budget is consistent with the UIPA. Given that the underlying purpose of the UIPA is disclosure, the Charter's requirement that the proposed budget be available to the public, including information that Finance, in its discretion, may otherwise be able to withhold under the UIPA, does not violate or otherwise conflict with the statute. Very ly yours, Leslie H. Kondo Director LHK:os OIP Op. Ltr. No. 05-03