Civil Division – New Castle County
May 6, 1996
Del. Op. Atty. Gen. 96-IB13 (Del.A.G.), 1996 WL 254932
(holding that municipalities must provide list of employee names and salary information for each employee where municipalities failed to provide evidence of administrative burden in compiling information)
Mr. Michael Pelrine
Delaware State News
P.O. Box 737
Dover, DE 19903-0737
Re: Freedom of Information Act Complaint
29 Del. C. § 10005(e)
Salary Information for Municipal Employees
Dear Mr. Pelrine:
Please consider this the Attorney General’s written determination pursuant to 29 Del. C. §10005(e) in the above-referenced matter.
As you are aware, after the Attorney General’s Office received your complaint on March 14, 1996 it was required to conduct an investigation to determine the validity of the Complaint. 29 Del. C. § 10005(e). A response to your complaint was requested in March 20, 1996 and April 12, 1996 letters to a specified official of eleven municipalities. This Office has received a response from ten of these municipalities.
Your complaint states that you requested employee salary information for all City and Town employees in the State of Delaware, and eleven cities or towns have contacted you, either directly or indirectly, and have stated that they did not intend to comply with your request. You asked that this Office determine whether there has been a violation of the Freedom of Information Act, 29 Del. C. ch. 100 (“the Act”).
In response to your complaint, four municipalities, Middletown, Delaware City, Clayton and New Castle, provided the requested information to the Complainant, two municipalities, Selbyville and Newport, stated that your request was not in proper form, four municipalities, South Bethany Beach, Henlopen Acres, Fenwick and Frankford, stated that “the disclosure of salary information specifically for each employee would constitute an invasion of personal privacy under [the Act] as well as under the federal Freedom of Information Act,” and one municipality, Magnolia, did not respond.
The attorney for South Bethany Beach, Henlopen Acres, Fenwick Island and Frankford in response to the Complaint added that “the request of the Delaware State News does not comply with the requirements of 29 Del. C. §10003.” The attorney’s response also offered that:
The Town, upon receiving an appropriate request under the terms of the Freedom of Information Act, would be happy to supply the names of the employees of the Town as well as copies of the annual budget including department budgets, however, the financial information of specific salaries is located only in payroll records with other personal, confidential information and on the Town’s copies of the employee’s W-2 forms. These records are protected under State and Federal law as they relate to personal privacy. This information has not been provided to the public historically.
Finally, the attorney for these municipalities advised that “[t]o require the town to purge payroll information creates an undue administrative burden on a very small staff.”
§ 10001. Declaration of policy.
It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.
§ 10002. Definitions.
(c) “Public funds” are those funds derived from the State or any political subdivision of the State.
(d) “Public record” is information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced. For purposes of this chapter, the following records shall not be deemed public:
(1) 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;
§ 10003. Examination and copying of public records.
(a) All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen. If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available. Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.
(b) It shall be the responsibility of the public body to establish rules and regulations regarding access to public records as well as fees charged for copying of such records.
OPINION AND ORDER
For the reasons stated below, we conclude that all municipalities in the State of Delaware must produce salary information that includes the name of the employee and the salary paid that employee as public records under the Act. In view of 29 Del. C. §10003, we also find that a municipality may require the Complainant to make its request in person and conform to any reasonable rules and regulations enacted by the municipality pursuant to §10003(b).
The issue of whether the salaries of public employees are public records under the Act has been previously, exhaustively discussed in Opinions from the Attorney General.(1) Most recently, on March 20, 1995, this office issued an Opinion incorporating legal decisions regarding municipal employees that concluded that the salary information of public teachers was a public record under the Act.(2) Notably, this Opinion rejected both the argument that privacy rights protected the employees from disclosure of their salary information, and the argument that the disclosure of their salary information without the names of the employees was sufficient to conform with the Act. It is not the intent of this Opinion to repeat the prior Opinions of this Office finding salary information of public employees to be public records under the Act other than to note that these Opinions were attached as a courtesy to the March 20, 1996 letter addressed to each municipality.
The response from the attorney for the four municipalities refusing to provide the salary information, even if there was compliance with §10003, refers to records protected under “State and federal law as they relate to personal privacy.” There is no citation to specific sections of the law and this statement evidences confusion concerning what is protected by statutes and what is made available by the Act. The prior Opinions from this Office recognized that certain records are protected from disclosure. See, e.g., 30 Del. C. §368(a) (protects tax returns). These statutes, however, do not prohibit disclosure of the information contained within these records.
The municipalities refusing to disclose the salary information argue that “information of specific salaries is located only in payroll records with other personal, confidential information and on the Town’s copies of the employee’s W-2 forms.” Even if the Towns have recorded specific salary information only in conjunction with other employee information protected from disclosure by statute, the disclosure of the salary information is not thereby also protected. It appears that the Towns recognize this fact, and therefore, argue that purging the payroll information would create an undue administrative burden on a very small staff.
The issue of whether the weight of the administrative burden on the Town is sufficient to defeat the public policy in §10001 that “citizens have easy access to public records” and defeat the statutory definition in §10002(d) that a public record “is information of any kind . . . regardless of the physical form or characteristic by which such information is stored, recorded or reproduced,” is a factual question. The Towns have not provided any details as to the extent of the administrative burden or any legal authority discussing the court’s concerns in this area. Since many larger and other municipalities equivalent in size to South Bethany Beach, Henlopen Acres, Fenwick Island and Frankford have responded with salary information without complaining of an administrative burden, the administrative burden argument appears without support.
As noted above, §10003 does require, by its terms, that a citizen appear to inspect and copy the requested public records. While a public agency can certainly respond to a request by telephone, mail or facsimile, the agency may also request the citizen to personally present themselves for that purpose. In this case, six of the eleven municipalities have made this request, and we conclude that this request is authorized by §10003.
Therefore, the municipalities that have refused to supply salary information and the municipalities that have objected to the form of the request are directed to provide this information within ten (10) calendar days of a proper request by the Complainant. If salary information that includes both the name of the municipal employee coupled with the salary assigned to that employee is not released to the Complainant during that time period, the Attorney General may invoke the enforcement provisions of 29 Del. C. §10005(e).
Very truly yours,
John K. Welch
Deputy Attorney General
James J. Hanley
Deputy Attorney General
Michael J. Rich
cc: William L. Witham, Esquire
Tempe Brownwell Steen, Esquire
Donald C. Taylor, Esquire
Ms. Nancy R. Hitch, Town Clerk, Town of Middletown
Mr. Peter P. Nilles, Town of Selbyville
Mr. Mark E. D’Onofrio, Town Manager, Town of Newport
Mr. Robert W. Martin, City Manager, Town of New Castle
Ms. Dianne Cahall, Town Clerk, Town of Magnolia