January 25, 1995
Del. Op. Atty. Gen. 95-IB03 (Del.A.G.), 1995 WL 794533
(determining that sworn payroll records filed with the Department of Labor are “public records”; provided that social security numbers must be redacted prior to inspection to protect personal privacy rights)
The Honorable Darrell J. Minott
Department of Labor
Carvel State Office Building
820 N. French Street, 6th floor
Wilmington, DE 19801
RE: Sworn Payroll Information 29 Del. C. § 10002
Dear Secretary Minott:
You have asked which portions of the payroll reports required under 29 Del. C. § 6912(c) are subject to public inspection and copying under the Delaware Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”). For the reasons which follow, we conclude that the documents required under § 6912(c) to be filed with the Department of Labor by state agencies are public records with the exception of employee Social Security numbers. Twenty-nine Del. C. § 6912(c) specifically provides that each public construction project contract shall contain a stipulation that the sworn payroll information shall be submitted weekly to the Department of Labor. The information required by the Department of Labor includes the name, address and Social Security number of each employee working on the public project, the employee’s work classification, total hours worked, rate of pay, gross amount earned, payroll deductions, types of fringe benefits provided and the cost of those fringe benefits.
As you are aware, § 6912(c) is a recent amendment to the prevailing wage law, and, accordingly, the question concerning which portions of the sworn payroll information are available for public inspection is a question of first impression. The purpose of 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. 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).
There are statutory exemptions to public disclosure under FOIA which may appear to be applicable to the sworn payroll information. Twenty-nine Del. C. § 10002(d)(6) provides that “[a]ny records specifically exempted from public disclosure by statute or common law” are not subject to disclosure under FOIA. Id. However, this office is not aware of any statutory or common law privilege which may exempt the sworn payroll information from public disclosure. Under 29 Del. C. § 10002(d)(1), public records do not include:
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.
The purpose of this exemption is to protect personal privacy. Del. Solid Waste Authority v. News-Journal, Del. Supr., 480 A.2d 628, 631 (1984). Interpreting the personal privacy exemption in a statute similar to the Delaware FOIA, the Connecticut Supreme Court ruled that the test for public disclosure is whether the information sought is “highly offensive to the ordinary reasonable person” and whether the information is truly “not of legitimate concern to the public.” Perkins v. Freedom of Information Comm’n, Conn. Supr., 635 A.2d 783, 790 (1993)(citing Restatement (Second) of Torts § 652D).
When the Delaware prevailing wage law is silent on an issue, it is appropriate to consult federal law interpreting its purposes and policy. Attorney General Opinion No. 80-I023 (July 9, 1980). The Davis-Bacon Act, 40 U.S.C. § 276(a), requires that laborers and mechanics be paid prevailing wages on federal construction projects. Each contractor and subcontractor on a federal construction project is required under the Davis-Bacon Act to submit a weekly statement regarding wages paid to each employee to the United States Secretary of Labor. 40 U.S.C. § 276(c). In Hopkins v. United States Department of Housing and Urban Development, 929 F.2d 81 (2d Cir. 1991), a union working on government construction projects requested copies of records prepared by HUD used to enforce the prevailing wage provisions of the Davis-Bacon Act. The court employed a balancing test and considered the privacy interest of the individuals versus the public interest in enforcing the prevailing wage laws and concluded that the enforcement of the prevailing wage laws outweighed the employees’ privacy interest in restricting the dissemination of their names, addresses and other wage information. The union made its
document request under the Federal Freedom of Information Act, 5 U.S.C. § 552, which mirrors the Delaware Freedom of Information Act with regard to exemption from the disclosure of personnel files.
The Third Circuit has also addressed this issue in I.B.E.W. Local U. No. 5 v. U.S. Dept. of HUD, 852 F.2d 87(3rd Cir. 1988). In this case, the union requested, under the Federal Freedom of Information Act, the names, addresses and Social Security numbers of non-union employees working for a federal contractor. The court also utilized a balancing approach and found that the public interest in disclosing employees’ names and addresses clearly outweighed any privacy interest. However, the Court ruled that a privacy interest in Social Security numbers outweighed the public interest in disclosure. The court stated as follows:
The employees have a strong privacy interest in their Social Security numbers. Congress has recognized this privacy interest by making unlawful any denial of a right, benefit, or privilege by a government agency because of an individual’s refusal to disclose his Social Security number. Privacy Act of 1974, Pub.L. 93-579, § 7, 88 Stat. 1896, 1909 (1974), reprinted in 5 U.S.C. § 552a note (1982). Moreover, in its report supporting the adoption of this provision, the Senate Committee stated that the extensive use of Social Security numbers as universal identifiers in both the public and private sectors is ‘one of most serious manifestations of privacy concerns in the Nation.’ S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 6916, 6943.
Id. at 89. While the disclosure of contractor payroll records serves a significant public interest in ensuring compliance with the Davis-Bacon Act, a disclosure of employees’ Social Security numbers constitutes a significant privacy concern and an unwarranted invasion of personal privacy in the absence of any evidence that the Social Security numbers are necessary to accomplish the objectives of the prevailing wage laws. Painting Ind. of Hawaii v. U.S. Dep. of Air Force, 756 F.Supp. 452 (Hawaii 1990).
Based on the federal case law and privacy concerns inherent in the exemption of personnel records from public records contained in 29 Del. C. § 10002(d)(1), we conclude that it is necessary to redact the Social Security numbers of the employees in providing responses to
document requests pursuant to the Delaware FOIA for sworn payroll information under 29 Del. C. § 6912(c). If you have any questions, please do not hesitate to contact our office.
Lawrence W. Lewis
Deputy Attorney General
John K. Welch
Deputy Attorney General
Michael F. Foster
M. Jane Brady
Keith R. Brady
Chief Deputy Attorney General