AGO 1973 No. 4 - Jan 19 1973
DISTRICTS ‑‑ SCHOOL ‑‑ PUBLIC RECORDS ‑‑ SALARY ‑‑ ACCESS TO SCHOOL DISTRICT PAYROLL RECORDS
(1) Under the provisions of Initiative No. 276, all records of a school district pertaining to the salaries of its employees and their payroll deductions must be made available for inspection and copying at the request of any person unless disclosure of particular information in such records would violate a right of privacy of the subject employee and this information cannot be deleted from the record without destroying it.
(2) The question of whether disclosure of any particular information in a school district's salary or payroll records would violate an employee's right of privacy is to be decided on a case‑by‑case basis in the courts in accordance with procedures set forth in §§ 31, 33 and 34 of Initiative No. 276.
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January 19, 1973
HonorableRobert E. Schillberg
Snohomish County Court House
Everett, Washington 98201
Attention: Mr. Eugene Butler, Deputy
Cite as:AGO 1973 No. 4
This is written in response to your recent letter requesting our opinion on the following three questions:
"1. Must a school district make available to a taxpayer such records as will provide names of school personnel and their salaries?
"2. If a district has compilations containing the above information in secondary records, must a district release to a taxpayer the compilations?
[Orig. Op. Page 2]
"3. Must a school district make available to a taxpayer a payroll registry containing information relating to withholding taxes, medical payments, UGN and other authorized deductions?"
We answer these questions in the manner set forth in the following analysis. Of necessity, our answers will be expressed largely in terms of general principles only ‑ in view of the potential variety of the records involved. For the most part, we must leave to you, as the [Orig. Op. Page 2] legal adviser for all school districts in your county,the task of applying these principles to any specific records of employee salaries, etc., which these districts may be maintaining.
Although your request was initially submitted to us prior to the recent, November 7, 1972, general election, with your consent we withheld completion of our response until after the election because of the potential impact of Initiative No. 276 upon the preexisting law governing access to the records of public agencies in this state.
As approved by the voters this initiativeconsists of four basic parts. The first of these relates to electoral campaign financing and requires the disclosure of all sources of campaign contributions and of the objects of all such expenditures. The second is designed to regulate the activities of lobbyists and to require reports of their expenditures.
[Orig. Op. Page 3]
Part three, as fully set forth in § 24 of the initiative, requires both candidates and elected officials to file periodic reports of a number of designated matters relating to their financial and business affairs; and finally, part four, as set forth in §§ 25‑34, governs access to the "public records" of all state and local governmental agencies, including school districts.
In considering your questions in the light of this enactment we must begin with a notation of the declaration contained in § 47 thereof that
". . . In the event of conflict between the provisions of this act and any other act, the provisions of this act shall govern."
Accordingly, our task here becomes essentially that of first considering what our answers to your questions would have been under the governing statutes if Initiative No. 276 had not been adopted; and then, secondly, determining the extent to which these statutes (or the legal conclusions to be drawn therefrom) conflict with the initiative so as to cause those answers now to be different by virtue of its passage.
A. Law prior to Initiative No. 276:
In responding to your questions before the enactment of this initiative, we would have commenced by noting the three separate classes of school districts which are provided for in RCW 28A.57.140, as follows:
"Any school district in the state having a population in excess of ten thousand, as shown by any regular or special census or by any [Orig. Op. Page 4] other evidence acceptable to the intermediate school district superintendent, shall be a school district of the first class. Any other school district maintaining a fully accredited high school or containing a city of the third class or of the fourth class or an area of one square mile having a population of at least three hundred shall be a school district of the second class. All other school districts shall be school districts of the third class."
We would then have indicated that all three of these classes of school districts are subject to the requirement of RCW 42.32.030, relating to the meetings of both state and local governmental agencies, that:
"The minutes of all regular and special meetings except executive sessions of such boards, commissions, agencies or authorities shall be promptly recorded and such recordsshall be open to public inspection." (Emphasis supplied.)
By virtue of this statute we would have stated as our first conclusion that to the extent any of the information referred to in your questions was contained in the minutes of a school board meeting, this information would have to be and remain open for public inspection in accordance with the statute ‑ regardless of the nature of the particular information.
Next we would have considered one fairly obvious source of at least some of the information pertaining to a teacher's compensation to which your questions refer ‑ namely, the teacher's formal, written contract. With regard to this source we would have pointed out that all such contracts are covered by a statute, RCW 28A.67.070, which provides (in material part) as follows:
"The board shall make with each employee employed by it a written contract, which shall be in conformity with the laws of this state, [Orig. Op. Page 5] and limited to a term of not more than one year. Every such contract shall be made in triplicate,one copy to be retained by the school district superintendent or secretary, one copy to be retained, after having been approved and registered, by the intermediate school district superintendent, and one copy to be delivered to the employee thereafter. . . ." (Emphasis supplied.)
In determining the availability of these contracts for public inspection we would next have turned to the common‑law rules regarding public records which have been enunciated and applied in numerous prior opinions of this office ‑ including (for example) AGO 57‑58 No. 84 (copy enclosed) in which we stated that the test of whether a record in the custody of a public agency constitutes a public record is that of whether the particular record is one which the agencyis required by law to maintain. Absent any statute to the contrary respecting access to teachers' contracts (and we have found none pre‑dating Initiative No. 276) we would then have concluded that by reason of the maintenance requirement of RCW 28A.67.070,supra, all certificated employees' contracts must be regarded as being open to public inspection under these common‑law rules, regardless of the class of school district involved.
Thirdly, but here in the case of first class school districts only, we would have then noted the provisions of another statute, RCW 28A.59.100, which requires that:
"The board of directors [of such districts] shall maintain an office where all regular meetings shall be held, and where all records, vouchers and other important papers belonging to the board may be preserved. Such records, vouchers, and other important papers at all reasonable times shall be available for public inspection." (Emphasis supplied.)
The essence of this statute, we would have said, is that all ". . . records, vouchers, and other important papers . . ." which are, in fact, kept by the board of directors of a first class school district at the district office are to be available for public inspection at all reasonable times ‑ regardless of whether or not they constitute "public records" as above defined. The only exceptions to this requirement [Orig. Op. Page 6] would then have been such as might be provided for by some other statute which, under applicable rules of statutory construction, would take precedence over RCW 28A.59.100 with respect to the uses to be made of certain specified records.
Finally, from these several above‑stated propositions we would then (i.e., in a pre‑Initiative No. 276 context) have summarized as follows the principles to be applied in determining the availability for public inspection of such records as are described in your questions:
(1)Rules applicable to all school districts:
In the case of all three classes of districts listed in RCW 28A.57.140,supra, interested taxpayers of the district would have been said to be entitled to have access at any reasonable time to ‑
(a) the minutes of all board meetings; and
(b) all other records which the district is required by law to maintain ‑ absent a special statute to the contrary.
(2)Additional requirement for first class districts:
With respect to first class districts, such access in addition would have been said to be required with respect to any records, vouchers or important papers of the board which are, in fact, maintained in the district office‑ unless the particular record sought to be inspected was rendered confidential or otherwise nonpublic by some other statute.
B.Effect of Initiative No. 276:
We commence our consideration of the effect of Initiative No. 276 upon the foregoing rules by noting the definition of "public records" appearing in § 2 (24) as follows:
"'Public record' includes any writing containing information relating to the conduct [Orig. Op. Page 7] of government or the performance of any governmental or proprietary function prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics."
The term "writing," in turn, is defined by § 2 (25) as meaning:
". . . handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation, including letters, words, pictures, sounds; or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums and other documents."
Chapter IV of the initiative (§§ 25‑34) which deals with these records contains both affirmative disclosure requirements and negative exemptions of certain records from such disclosure. First to be noted is § 26, which provides that:
"(1) Each agency, in accordance with published rules, shall make available for public inspection and copying all public records. To the extent required to prevent an unreasonable invasion of personal privacy, an agency shall delete identifying details when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing. . . ." (Emphasis supplied.)
On the other side of the coin, § 31 states that:
"(1) The following shall be exempt from public inspection and copying:
"(a) Personal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, welfare recipients, prisoners, probationers or parolees.
[Orig. Op. Page 8]
"(b) Personal information in files maintained for employees, appointees or elected officials of any public agency to the extent that disclosure would violate their right to privacy.
"(c) Information required of any taxpayer in connection with the assessment or collection of any tax if the disclosure of the information to other persons would violate the taxpayer's right to privacy or would result in unfair competitive disadvantage to such taxpayer.
"(d) Specific intelligence information and specific investigative files compiled by investigative, law enforcement and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the non‑disclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy.
"(e) Information revealing the identity of persons who file complaints with investigative, law enforcement or penology agencies, except as the complainant may authorize.
"(f) Test questions, scoring keys, and other examination data used to administer a license, employment or academic examination.
"(g) Except as provided by chap. 8.26 R.C.W. , the contents of real estate appraisals, made for or by any agency relative to the acquisition of property, until the project is abandoned or until such time as all of the property has been acquired, but in no event shall disclosure be denied for more than three years after the appraisal.
"(h) Valuable formulae, designs, drawings and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss.
[Orig. Op. Page 9]
"(i) Preliminary drafts, notes, recommendations, and intra‑ agency memorandums in which opinions are expressed or policies formulated or recommended except that a specific record shall not be exempt when publicly cited by an agency in connection with any agency action.
"(j) Records which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts."
However, this section then goes on to provide that:
"(2) The exemptions of this section shall be inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interest, can be deleted from the specific records sought. No exemption shall be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons."
The question of who may examine such records as are required by the initiative to be made available for inspection ‑ as well as the manner in which an agency is to respond to a request for inspection ‑ is covered by § 27 as follows:
"Public records shall be available to any person for inspection and copying, and agencies shall, upon request for identifiable records, make them promptly available to any person. Agency facilities shall be made available to any person for the copying of public records except when and to the extent that this would unreasonably disrupt the operations of the agency."
[Orig. Op. Page 10]
See, also, § 28, which spells out the times during which inspection may take place, as follows:
". . . Public records shall be available for inspection and copying during the customary office hours of the agency: PROVIDED, that if the agency does not have customary office hours of at least thirty hours per week, the public records shall be available from nine o'clock a.m. to noon and from one o'clock p.m. to four o'clock p.m. Monday through Friday, excluding legal holidays, unless the person making the request and the agency or its representative agree on a different time."
As is indicated at the outset, school districts are agencies (specifically, "local agencies") within the meaning of this recent enactment. Thus, as a general matter, they now have an affirmative duty under the initiative to make available their nonexempt "public records" to "any person." Moreover, we have no hesitation in advising you that a taxpayer in this case is a person who is clearly entitled to access to these public records.
It is further manifest, we think, that any written record reflecting amounts paid to school district employees is a ". . . writing containing information relating to the conduct of government or the performance of any governmental or [Orig. Op. Page 11] proprietary function prepared, owned, used or retained by [a] . . . local agency . . ." Thus, we readily conclude that all such recordsare "public records" within the meaning of § 2 (24) of the initiative and, as such, are to be made "promptly available to any person" under the provisions of § 27 thereof ‑ subject only to the exemptions contained in § 31 and the qualification of § 26 that
". . . To the extent required to prevent an unreasonable invasion of personal privacy, an agency shall delete identifying details when it makes available or publishes any public record; . . ."
Of the several exemptions listed in § 31, the only one appearing to have any probable bearing upon your immediate questions is the section's exemption of
"(b) Personal information in files maintained for employees . . . of any public agency to the extent that disclosure would violate their right to privacy."
And even in the case of this exemption ‑ which, by its terms, will only apply if the particular record sought is maintained as a part of an employee's personnel file ‑ it will be recalled that by virtue of § 31 (2), supra, nondisclosure will only be justified where
". . . information, the disclosure of which would violate personal privacy or vital governmental interest, can[not] be deleted from the specific records sought. . . ."
Accordingly, in the final analysis, the question to be asked under both §§ 26 and 31 is essentially the same; i.e., will the disclosure of an identified employee's salary and/or authorized payroll deductions to a member of the public upon request result in ". . . an unreasonable invasion of personal privacy . . ." or a ". . . violation of [his] right to privacy . . ."?
If this question is answered in the affirmative, then, under Initiative No. 276, the record on which the information is contained may not be made available for inspection unless the protected portion of the record can be deleted ‑ even though the record is one which would have been required to [Orig. Op. Page 12] have been made availablein its entirety under the prior laws above summarized. On the other hand, if the information is not deemed to be protected by one or both of these sections of the initiative, or if it can be deleted without destroying the record, then inspection must be permitted under the initiative ‑ even though this would not have been required before.
As you will note from a reading of the full text of the initiative, its drafters did not define or otherwise state specific standards outlining the right of personal privacy ‑ in apparent recognition of the uniqueness of that right to each individual or entity which might wish to raise it in opposition to the disclosure of a particular record. Instead, they appropriately left it to the court to protect that personal right on a case‑by‑case basis as it is individually invoked, under procedures which they spelled out in three separate portions of Chapter IV of the initiative.
First to be noted in this regard is § 31 (3) which deals with records which are exempt from inspection under one or more of the sub‑parts of subsection (1),supra, and provides that:
"(3) Inspection or copying of any specific records, exempt under the provisions of this section, may be permitted if the superior court in the county in which the record is maintained finds, after a hearing with notice thereof to every person in interest and the agency, that the exemption of such records, is clearly unnecessary to protect any individual's right of privacy or any vital governmental function."
Similarly, in a situation where an agency has denied access to a particular "public record," § 34 of the initiative provides that:
"(1) Upon the motion of any person having been denied an opportunity to inspect or copy a public record by an agency, the superior court in the county in which a record is maintained may require the responsible agency to show cause why it has refused to allow inspection or copying of a specific record or class of records. The burden of proof [Orig. Op. Page 13] shall be on the agency to establish that refusal to permit public inspection and copying is required.
"(2) Judicial review of all agency actions taken or challenged under Sections 25 through 32 of this act shall be de novo. Courts shall take into account the policy of this act that free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others. Courts may examine any record in camera in any proceeding brought under this section."
Conversely, where access to an assertedly protected or exempt record may be about to be allowed by an agency, § 33 provides that:
"The examination of any specific record may be enjoined if, upon motion and affidavit, the superior court for the county in which the movant resides or in which the record is maintained, finds that such examination would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions."
However, irrespective of which procedure is followed, the basic issue in each case involving records such as those described in your questions will be the same; i.e., (again) will the disclosure of an identified employee's salary and/or authorized payroll deductions to a member of the public upon request result in ". . . an unreasonable invasion of personal privacy . . ." or a ". . . violation of [his] right to privacy . . ."?
Were we to venture any kind of prediction as to the outcome of any such test litigation, based upon the overall thrust of Initiative No. 276, it would probably be as follows: That in most cases the salaries of all school district or other public employees, identified by names, [Orig. Op. Page 14] would likely be held to be in the public domain under the initiative ‑ involving as they do expenditures of the public's money; on the other hand, we would expect that at least such purely voluntary payroll deductions as those for UGN contributions, union dues or payments to creditors would be deemed to be protected by the "personal privacy" restrictions of the initiative in most instances. But, of course, for the reasons above explained, this can only be decided in each particular case on the basis of all of the facts thereof.
We trust the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
"(1) 'Agency' includes all state agencies and all local agencies. 'State agency' includes every state office, public official, department, division, bureau, board, commission or other state agency. 'Local agency' includes every county, city, city and county, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency." (Emphasis sup‑ plied.)
This would include, presumably, such "secondary" records of sala‑ ries, etc., as are referred to in your second question if these records are, factually, maintained by a given first class district.
In prior opinions of this office, we have indicated generally that the requesting member of the public must demonstrate some need for the information contained in the requested documents even where these are denominated "public records" under the above‑noted common‑law rules. AGO 53‑55‑61 ; AGO 57‑58 No. 84, copies enclosed. Section 27 of the initiative, however, makes it clear that public records are to be made available to "any person." Accord, Grumman Aircraft Engineer Corp. v. Renegotiation Bd., 425 F.2d 578 (D.C. 1970), in which the court, in construing identical language in the federal "Freedom of Information Act" (5 U.S.C. § 552) said, at page 582:
". . . the Act removed the requirement that a party show 'need' for a document; information is available equally 'to any person.' . . ."