Can the public get payroll records for Delaware State University employees under the state's FOIA law?

Official title

07-IB12 RE: Freedom of Information Act Complaint Against Delaware State University

Plain-English summary

A requester asked Delaware State University for the payroll records of two named employees. The university refused, explaining that FOIA generally exempted its records except those "relating to the expenditure of public funds," and that these two employees were paid entirely from non-public funds.

The AG's office did not simply take the university's word for it. Its staff, including the Department of Justice's own accountant, sat down with the university's accounting staff and reviewed the actual accounting records. Those records showed that every university employee was coded, or "tagged," in the accounting system to a specific funding source, either state appropriations or the university's own separately maintained restricted-fund bank account, covering salary, benefits, and pension contributions alike. The two employees in question were coded as paid from restricted, non-public funds. Because FOIA's carve-out for the state's public universities limits public records to those tied to the expenditure of public funds, and these employees' compensation didn't come from public funds, the AG found their payroll records fell outside FOIA and the university had not violated the law by withholding them.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Were all Delaware State University records subject to FOIA?

No, according to this opinion. FOIA specifically excluded "activities of the University of Delaware and Delaware State University" from the definitions of "public body," "public record," and "meeting," except that each university's Board of Trustees counted as a public body and records "relating to the expenditure of public funds" counted as public records.

Was a public university employee's payroll information automatically a public record?

Not under this opinion. The determining factor was the funding source. If the university's own accounting records showed an employee's salary, benefits, and pension were paid from non-public, restricted funds rather than state appropriations, the AG found that payroll information fell outside FOIA's reach.

Did the AG just accept the university's explanation of how an employee was paid?

No. The AG's office, together with its own accountant, reviewed the university's actual accounting records and met with university accounting staff to verify how the two employees were coded before concluding their pay came from non-public funds.

Background and statutory framework

FOIA generally required that "[a]ll 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." 29 Del. C. § 10003(a). But the statute carved out the state's two public universities from FOIA's ordinary reach: "'Public body,' 'public record' and 'meeting' shall not include activities of the University of Delaware and Delaware State University, except that the Board of Trustees of the University of Delaware and the Board of Trustees of [Delaware State University] shall be 'public bodies,' … and documents relating to the expenditure of public funds shall be 'public records.'" 29 Del. C. § 10002(d).

Citing its own prior opinion applying this same carve-out, the AG reiterated that records in Delaware State University's custody were exempt from FOIA disclosure unless they related to the expenditure of public funds. Because the university's accounting system tracked every employee's compensation, including salary, benefits, and pension contributions, to a specific funding source, and its records showed the two employees at issue were paid entirely from the university's separately maintained restricted, non-public fund account, the AG concluded their payroll records did not relate to the expenditure of public funds and so were not public records under FOIA.

Citations

• 29 Del. C. § 10003(a) (public records open to inspection and copying by the appropriate custodian)
• 29 Del. C. § 10002(d) (Delaware State University's activities are excluded from FOIA's "public body," "public record," and "meeting" definitions, except records relating to the expenditure of public funds)

Source

• Landing page: https://attorneygeneral.delaware.gov/2007/05/10/07-ib12-re-freedom-of-information-act-complaint-against-delaware-state-university/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 07-IB12 (Del.A.G.), 2007 WL 4732795

Office of the Attorney General

State of Delaware

Opinion No. 07-IB12

May 10, 2007

RE: Freedom of Information Act Complaint Against Delaware State University

*1 Mr. Robert P. Reeder

1302 Barksdale Road

Newark, DE 19711

Dear Mr. Reeder:

On March 12, 2007, our Office received your complaint alleging that Delaware State University (“the University”) violated the public record requirements of the Freedom of Information Act, 29 Del. C. Ch. 100 (“ FOIA ”).

By letter dated February 17, 2007, you asked the University for: “payroll documents of Delaware State Employees, Mr. Richard Cathcart and Ms. Nancy Wagner.”

By letter dated March 5, 2007, Carlos Holmes, the University’s Director of News Services, Office of Public Relations, denied your FOIA request. According to Mr. Holmes, the “University is exempted from the application of [ FOIA ] except with respect to records relating to expenditure of public funds … The records requested by you do not relate to the expenditure of public funds ….”

By letter dated March 12, 2007, our Office asked the University to respond to your FOIA complaint in writing by March 23, 2006. Our Office received the University’s response on March 23, 2007.

According to the University:

Neither Mr. Cathcart nor Ms. Wagner are compensated by the University from public funds. Within its accounting system, the University maintains a strict separation of public and non-public funds. Upon employment, every University employee is coded or “tagged” within the University’s accounting software so that their compensation can be tracked to a funding source (i.e., public or non-public funding). This tracking system includes not only salary, but also all benefits and pension expenditures.

…

Mr. Cathcart and Ms. Wagner are coded within the University’s accounting system such that their salary and benefits and pension payments are compensated from non-public funds. To be absolutely clear, neither Mr. Cathcart nor Ms. Wagner are compensated by the University through the use of public funds.

In order to better understand the University’s accounting system, representatives of our Office (including the Department of Justice’s accountant) met with the University’s accounting staff on April 19, 2007. Using actual accounting records, the University’s accounting staff showed us how it codes each new employee to be paid either by University funds (also known as private or “restricted” funds) or by State appropriations. The University maintains a separate bank account (at PNC Bank) for restricted funds to pay not only the employee’s salary but also contributions for benefits and pension according to the State payroll formula. The University’s accounting records show that both Mr. Cathcart and Ms. Wagner are coded for payroll purposes as paid by restricted funds.

RELEVANT STATUTES

FOIA requires that “[a]ll 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.” 29 Del. C. § 10003(a) .

*2 FOIA provides that “‘Public body, ‘public record’ and ‘meeting’ shall not include activities of the University of Delaware and Delaware State University, except that the Board of Trustees of the University of Delaware and the Board of Trustees of [Delaware State University] shall be ‘public bodies,’ … and documents relating to the expenditure of public funds shall be ‘public records,’ …” Id. § 10002(d).

LEGAL ANALYSIS

“‘As a general rule, FOIA requires that ‘all public records shall be open for inspection and copying by citizens of the State during regular business hours by the custodian of the records for the appropriate public body.’” Att’y Gen. Op. 00-IB08 (May 24, 2000) (quoting 29 Del. C. § 10003(a) ). “ FOIA exempts from disclosure, however, records in the custody of [Delaware State University] unless they ‘relate to the expenditure of public funds.”’ Att’y Gen. Op. 00-IB08 (quoting 29 Del. C. § 10002(d) ).

Based on the record, our Office determines that the payroll information you requested from the University regarding Mr. Cathcart and Ms. Wagner is not a public record for purposes of FOIA . The record shows that the University compensates Mr. Cathcart and Ms. Wagner for salary, benefits, and pension with non-public funds. Under FOIA , that payroll information is not a public record to which the public must have access because the information does not “relat[e] to the expenditure of public funds.” 29 Del. C. § 10002(d) .

CONCLUSION

For the foregoing reasons, our Office determines that the University did not violate FOIA. The payroll information you requested is not a public record under FOIA because that information does not relate to the expenditure of public funds.

Very truly yours,

W. Michael Tupman, Esquire

Deputy Attorney General

Approved

Lawrence W. Lewis, Esquire

State Solicitor

Del. Op. Atty. Gen. 07-IB12 (Del.A.G.), 2007 WL 4732795