New Castle County - Civil Division

July 30, 1998

The Honorable Lisa Blunt-Bradley
Office of The Secretary
Department of Labor
4425 North Market Street
Wilmington, DE 19802

Re: Sworn Payroll Information
 29 Del. C. § 10002 

Dear Secretary Blunt-Bradley:

In Attorney General Opinion No. 95-IB03 (Jan. 25, 1995), this
Office opined that sworn payroll statements filed by contractors
with the Delaware Department of Labor ("DOL") pursuant to 29
Del. C. § 6912(c) were public records under the Delaware Freedom
of Information Act, 29 Del. C. ch. 100 ("DFOIA"), with the
exception of employee social security numbers.1 That Opinion
relied heavily on the holding in I.B.E.W. v. United States Dep't
of Hous. & Urban Dev., 852 F.2d 87 (3rd Cir. 1988) ("IBEW"),
which permitted the disclosure of employee names and addresses,
but not social security numbers, under the Federal Freedom of
Information Act, 5 U.S.C. § 552 ("FFOIA"). The union in IBEW
requested contractor payroll records submitted to the United
States Department of Labor pursuant to the Davis-Bacon Act.2

Recently, the Third Circuit in Sheet Metal Workers Int'l Ass'n
v. United States Dep't of Veterans Affairs, 135 F.3d 891 (3rd
Cir. 1998)("Sheet Metal Workers") modified its earlier decision
in IBEW. The Court in Sheet Metal Workers found that the
disclosure of employees' names and addresses is no longer
required as a consequence of heightened personal privacy
concerns raised by decisions in other Circuits and the United
States Supreme Court.3

I. THE ISSUES

In light of the Sheet Metal Workers decision, your predecessor
asked this Office for legal advice on two questions. First,
whether the DOL should discontinue the practice of releasing the
names and addresses of employees listed in sworn payroll
reports. Second, whether the DOL is required to release the
names and addresses of apprentices registered with the
Apprenticeship and Training Program.

For the reasons explained below, we conclude that the DOL should
discontinue the practice of releasing the names and addresses of
employees listed in sworn payroll reports. We further conclude
that the DOL is not required to release the names and addresses
of apprentices registered in the Department's Apprenticeship and
Training Program. As a result of our conclusions, Attorney
General Opinion No. 95-IB03 (Jan. 25, 1995) is hereby rescinded
and superseded by this Opinion.

II. SWORN PAYROLL REPORTS

In Sheet Metal Workers, the Court balanced the employee's
personal privacy interest, recognized by 5 U.S.C. § 552(b)(6),
against a labor union's interest in obtaining the names,
addresses and social security numbers of employees submitted in
sworn payroll information reports submitted by contractors to
the federal government to ensure compliance with prevailing wage
laws. 135 F.3d at 896. The Court reasoned that employees have a
significant personal privacy interest in not receiving
solicitations through the mail at home. Id. at 900. The Court
noted that there are other less intrusive methods of obtaining
the information. Namely, the union could distribute fliers as
employees arrive and leave work, post signs or use existing
information to compare job classifications with pay rates. Id.
at 904.

The Third Circuit took heed of more recent FOIA decisions in
which the United States Supreme Court analyzed the right to
access public records by reference to the "core function" of
FOIA: to allow citizens to know what their government was doing.
In a modern, highly regulated society, the government has in its
possession vast data banks of highly personal information, which
citizens are required to provide as a condition of receiving a
license or other government benefit. The core function of FOIA
is not served by making that information available to third
parties to use for their own commercial or other purposes. Any
public policy in favor of open government may have to give way
to the greater right of personal privacy. Accordingly, the Court
modified its prior holding in IBEW by permitting the federal
government to withhold the names, addresses and social security
numbers of employees from FFOIA requests by labor unions for
sworn payroll information required under the Davis-Bacon Act.
Id. at 905.

Similarly, the purpose of Delaware's FOIA is to provide the
public with access to public records which will "enable citizens
to observe and monitor state government." 29 Del. C. § 10001.
(emphasis supplied). Public records are defined in 29 Del. C. §
10002(d) as information of any kind relating to public business
which is stored, recorded or reproduced. Further, public records
must be "open to inspection and copying by any citizen of the
State." 29 Del. C. § 10003(a). However, there are statutory
exemptions to public disclosure under Delaware's FOIA:

Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy.

29 Del. C. § 10002(d)(1). The purpose of this exception is to
protect personal privacy. See Delaware Solid Waste Auth. v.
News-Journal, Del. Supr., 480 A.2d 628, 631 (1984).

When the Delaware prevailing wage law is silent on an issue, it
is appropriate to consult the federal law interpreting its
purposes and policy. Att'y Gen. Op. No. 80-IO23 (July 9, 1980).
The Davis-Bacon Act, 29 Del. C. § 6960 requires that laborers
and mechanics be paid prevailing wages on state public
construction projects. Further, " [e]very contract based upon
these specifications shall contain a stipulation that sworn
payroll information, as required by the Department of Labor, be
furnished weekly" to verify compliance with the state prevailing
wage law. 29 Del. C. § 6960(c).

The Delaware FOIA, like its federal counterpart, recognizes a
strong personal privacy interest in 29 Del. C. § 10002(d)(1).
The purpose of making public records accessible is to enable
citizens to monitor state government. 29 Del. C. § 10001. This
equates to the "core purpose" that contributes to public
understanding of the government, articulated in Sheet Metal
Workers. We have previously issued an opinion to the Division of
Revenue that the DFOIA does not require the disclosure of the
names and addresses of business license holders. Such
information is within the realm of traditional privacy, and
disclosure does not "appear to further the purpose of FOIA to
assure that the public processes and records of government are
open." Att'y Gen. Op., 96-IB33 (Dec. 11, 1996).

The request for names, addresses and social security numbers of
employees submitted in sworn payroll information to the DOL is
not a "core purpose" of the regulation of state prevailing wage
laws that would outweigh the employee's personal privacy
interest in Section 10002(d)(1). Therefore, we conclude that a
Delaware court facing this issue would uphold the non-disclosure
of names, addresses and social security numbers of employees
contained in sworn payroll information submitted to the DOL on
the basis of the overwhelming persuasive authority in Sheet
Metal Workers as well as case decisions in other Federal
Circuits and the United States Supreme Court.4

III. APPRENTICESHIP AND TRAINING PROGRAMS

The DOL keeps on file apprenticeship agreements with approved
contractors that contain the names and addresses of apprentices
registered in the Apprenticeship and Training Program. As with
prevailing wage requirements, various organizations request
these agreements from the DOL under the DFOIA to obtain the
names and addresses of registered apprentices for the purpose of
ensuring compliance with program regulations.

The purpose of the Apprenticeship and Training Program is to
encourage the development of a training system to maintain a
skilled labor force and specifically to protect and safeguard
the welfare of apprentices and trainees. 19 Del. C. § 201.
Training and Apprenticeship Programs are subject to approval by
the DOL. 19 Del. C. § 204.  The DOL is charged with maintaining
records of apprenticeship agreements and programs and reviewing
such agreements and programs for compliance with the DOL rules
and regulations. 19 Del. C § 202.

While not specifically addressed in Sheet Metal Workers, the
names and addresses of apprentices registered with the DOL
Apprenticeship and Training Program are subject to the same
significant personal privacy interests as employees listed in
sworn payroll reports. Although this is an issue of first
impression in Delaware, it is very likely that a reviewing court
would weigh the personal privacy interest of apprentices and
trainees against the regulatory effect of the request for
information in the same manner as sworn payroll information. It
is our view that a request for the names and addresses of
registered apprentices and trainees is not a regulatory "core
purpose" sufficient to outweigh the personal privacy interests
of registered apprentices and trainees. Consequently, we predict
that the DOL would be permitted to withhold the names and
addresses of registered apprentices and trainees.

IV. SUMMARY

For the reasons explained above, we advise the DOL to
discontinue the practice of releasing the names and addresses of
employees listed in sworn payroll reports. We further conclude
that the DOL is not required to release the names and addresses
of apprentices and trainees registered with the Apprenticeship
and Training Program. As a result of our legal conclusions on
these issues, Attorney General Opinion No. 95-IB03 (Jan. 25,
1995) is rescinded and superseded by this Opinion.

If you have further questions, please feel free to contact our
office. Thank you for this opportunity to revise our prior
Opinion in light of recent changes in the case law.

Very truly yours,


Lawrence W. Lewis
Deputy Attorney General

APPROVED:

Michael J. Rich
State Solicitor

xc: The Honorable M. Jane Brady
    Attorney General

Keith R. Brady
Chief Deputy Attorney General

Chrystyna L. Savitz
Opinion Coordinator

1  The sworn payroll information requirement was re-codified
from 29 Del. C. § 6912(c) to 29 Del. C. §6960(c) by 70 Del. Laws
c. 601, effective September 16, 1996. The purpose of the
requirement is to verify that prevailing wages are paid on State
public construction projects.

2  The Davis-Bacon Act, 40 U.S.C.A. § 276-a et seq., is a
federal measure, similar to 29 Del. C. § 6960(c) which requires
the submission of payroll records on federal public construction
projects to ensure compliance with federal prevailing wage
requirements.

3  See United States Dep't of Justice v. Reporters Comm. For
Freedom of the Press, 489 U.S. 749 (1989); United States Dep't
of Defense v. Federal Labor Relations Auth., 510 U.S. 487
(1994). See also Painting Indus. of Haw. Market Recovery Fund v.
United States Dep't of Air Force, 26 F.3d 1479 (9th Cir. 1994)
(Court ruled that the release of a list containing names,
addresses and wage information of construction workers would
violate significant privacy interests); Painting and Drywall
Work Preservation Fund, Inc. v. Department of Hous. and Urban
Dev., 936 F.2d 1300 (D.C. Cir. 1991) (HUD supplied payroll
records but withheld names, Social Security numbers and home
addresses. Court ruled that the possibility of an intrusion upon
privacy by releasing this information outweighed any public
interest); Hopkins v. United States Dep't of Hous. and Urban
Dev., 929 F.2d 81 (2nd Cir. 1991) (HUD deleted all employee
names, addresses and Social Security numbers from requested
payroll records. Court ruled that had this information been
released it would have caused a great intrusion on the
employees' privacy).

4  See footnote 3, supra.

Return to Index