Can Delaware school districts refuse to release the names of teachers along with their salaries in a public records request?

Official title

95-IB13: Re: Freedom of Information Act Complaint Milford, Woodbridge, Indian River, Seaford and Laurel School Districts 29 Del. C. § 10005(e)

Plain-English summary

A newspaper editor filed a FOIA complaint against five Delaware school districts (Seaford, Indian River, Laurel, Woodbridge, and Milford) after requesting each teacher's name, position, years of service, and salary, and being told the districts would not comply. The districts eventually turned over salary, position, and experience data but refused to release the teachers' names that corresponded to those records, arguing the names were protected personnel information.

The Attorney General ordered all five districts to produce the names within seven days. The opinion applied Delaware's existing FOIA exemption for personnel, medical, or pupil files "the disclosure of which would constitute an invasion of personal privacy," and found the names didn't qualify: the salaries were paid entirely with public tax dollars, the districts hadn't shown any specific privacy harm from linking a name to a salary already made public, and the names themselves were generally obtainable through sources outside each district's personnel files anyway. The opinion also rejected the districts' argument that the names amounted to labor-negotiation or collective-bargaining records. Surveying case law from Delaware, New Hampshire, Illinois, Maryland, New York, and Wisconsin, all of which had reached the same result for public employee salary and name disclosures, the Attorney General concluded the public's interest in knowing who is paid with public funds outweighed any privacy interest the teachers had in keeping their names attached to already-public salary figures.

Currency note

This opinion was issued in 1995. 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

Q: Do public school teachers have a privacy right that keeps their names out of a public records request about salaries?
A: No, according to this opinion. The Attorney General found that because teachers are paid with public tax dollars, they have no privacy right in having their names withheld once their salary, position, and years of service were already disclosed as public records.

Q: Can a school district withhold employee names by calling them part of a "personnel file"?
A: Not on these facts. The opinion found the teachers' names were "simply not information of a highly personal nature" under the Act's personnel-file exemption, and noted the names were obtainable from sources outside the districts' personnel files in any event.

Q: Could a district argue that releasing teacher names interferes with union negotiations?
A: The districts tried that argument here, framing the names as "records involving labor negotiations or collective bargaining." The opinion rejected it, finding no factual basis connecting the teachers' names, tied to already-disclosed salary data, to any actual bargaining record.

Q: What happens if a Delaware public body doesn't comply with an Attorney General FOIA determination like this one?
A: This opinion directed the districts to comply within seven calendar days and stated the Attorney General would invoke the Act's enforcement provisions, 29 Del. C. § 10005(e), if they did not.

Background and statutory framework

Delaware's FOIA declares that "public business be performed in an open and public manner" so citizens can monitor public officials, 29 Del. C. § 10001, and defines "public record" broadly to include any information a public body compiles relating to public business, subject to specific carve-outs, 29 Del. C. § 10002(d). One carve-out exempts personnel, medical, or pupil files whose disclosure "would constitute an invasion of personal privacy," 29 Del. C. § 10002(d)(1), and another exempts records involving labor negotiations or collective bargaining, 29 Del. C. § 10002(d)(8). The Act's public-inspection right is set out at 29 Del. C. § 10003(a), which this office and Delaware courts, citing Delaware Solid Waste Authority v. News Journal, 480 A.2d 628 (Del. 1984), have construed liberally in favor of disclosure. A separate statute, 30 Del. C. § 368, independently protects the confidentiality of specific tax-return income figures, which is why the complainant withdrew its request for W-2 salary totals specifically while still pursuing the combined state and local salary figures the districts had already agreed to release.

The Delaware Superior Court had already applied a public-interest balancing test to public salaries in Gannett Company, Inc. and Laurie Hays v. Ray W. Christian, C.A. No. 82M-DE26 (Del. Super. Aug. 10, 1983), finding "public employees have no right of privacy" in their salary information. This office found the same balancing approach used by the New Hampshire Supreme Court in Mans v. Lebanon School Board, 290 A.2d 866 (N.H. 1972), and reaffirmed in Brent v. Paquette, 567 A.2d 976 (N.H. 1989), persuasive, along with rulings from Illinois (People ex rel. Recktanwal v. Janurg, 376 N.E.2d 22 (Ill. App. 1978)), Maryland (Moberly v. Herbold Sheimer, 345 A.2d 855 (Md. 1975)), New York (Gannett Co., Inc. v. County of Monroe, 383 N.E.2d 1151 (N.Y. 1978)), and Wisconsin (Board of School Directors v. Wisconsin Employment Relations Commission, 168 N.W.2d 92 (Wis. 1969)), all holding that public employee salary and identifying information are public records.

Citations and references

Statutes:

• 29 Del. C. § 10001, declaration of policy favoring open, observable public business
• 29 Del. C. § 10002(d), definition of "public record" and its exceptions
• 29 Del. C. § 10002(d)(1), personnel/medical/pupil file privacy exemption
• 29 Del. C. § 10002(d)(8), labor-negotiation and collective-bargaining records exemption
• 29 Del. C. § 10003(a), public right to inspect records
• 29 Del. C. § 10005(e), FOIA complaint and enforcement procedure
• 30 Del. C. § 368, confidentiality of specific tax-return income information
• 5 U.S.C. § 552(a), federal Privacy Act, discussed in a footnote regarding payroll disclosure

Cases:

• Delaware Solid Waste Authority v. News Journal, 480 A.2d 628 (Del. 1984), FOIA's disclosure provisions construed liberally
• Gannett Company, Inc. and Laurie Hays v. Ray W. Christian, C.A. No. 82M-DE26 (Del. Super. Aug. 10, 1983), public employees have no privacy right in salary information
• Mans v. Lebanon School Board, 290 A.2d 866 (N.H. 1972), balancing test favors disclosure of teacher salaries
• Brent v. Paquette, 567 A.2d 976 (N.H. 1989), reaffirming that teacher contracts and salaries are not privacy-exempt
• People ex rel. Recktanwal v. Janurg, 376 N.E.2d 22 (Ill. App. 1978), county employee salary records are public
• Moberly v. Herbold Sheimer, 345 A.2d 855 (Md. 1975), state/county/municipal employee salaries are public
• Gannett Co., Inc. v. County of Monroe, 383 N.E.2d 1151 (N.Y. 1978), former county employee records were public
• Board of School Directors v. Wisconsin Employment Relations Commission, 168 N.W.2d 92 (Wis. 1969), municipal employee (including teacher) salaries are public records

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/03/20/95-ib13-re-freedom-of-information-act-complaint-milford-woodbridge-indian-river-seaford-and-laurel-school-districts-29-del-c-§-10005e/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 95-IB13 (Del.A.G.), 1995 WL 794545 ( finding that disclosure of names and salary of public teachers would not constitute an invasion of personal privacy and directing school districts to provide the requested information )

Office of the Attorney General

State of Delaware

Opinion No. 95-IB13

March 20, 1995

Re: Freedom of Information Act Complaint Milford, Woodbridge, Indian River, Seaford and Laurel School Districts 29 Del. C. § 10005(e)

*1 Michael J. Pelrine

Editor

Delaware State News

P.O. Box 737

Dover, DE 19903-0737

Dear Mr. Pelrine:

This is the decision on the above referenced complaint. 1

On or about February 13, 1995 this office received a complaint by the Delaware State News (“State News”and/or “Complainants”) seeking teacher “salary information of all Delaware School Districts below the C&D Canal.” The complaint alleged that five of the school districts, namely the Seaford, Indian River, Laurel, Woodbridge and Milford School Districts have contacted the Complainants, either directly or through an attorney, and have stated “they do not intend to comply with our [Freedom of Information Act] request.” (Complaint, ¶2). The Complainant sought from each school district listed above a list of each “teacher’s name, position, length of service, and Federal W-2 form salary total for 1994.” Id.

On February 14, 1995 the State News amended its complaint and stated that it was now seeking “the names of the teachers in the school districts, their salaries for fiscal year 1994-1995, their positions and each teachers years of service.” (Amended Complaint ¶ 1). The State News formally withdrew its request that the salary information be provided from the Federal W-2 form salary total 1994 of each teacher. This was in apparent response to the school districts’ citation to the 30 Del. C. § 368(a) as a statutory basis for refusing to produce the records in question. This statute prohibits disclosing specific taxpayer information regarding “the amount of income or any particular set forth or disclosed in any report or return … including any copy of any portion of federal income … tax return or any report or information on a federal return or report which is required to be attached to or included in a state tax return.” 2

Thereafter, Roger A. Akin, Esquire entered his appearance on behalf of the Seaford School District and Board of Education. On behalf of his client, Mr. Akin provided all of the public records in question sought by the Complainant except the names of the particular teachers which were referenced for each salary, position and years of service. 3 Finally, on behalf of the Milford, Woodbridge, Indian River and Laurel School Districts James D. Griffin, Esquire wrote a letter to the Attorney General dated March 1, 1995 which indicated that his clients are willing to, and have already provided, all of the public information requested by the Complainants “with exception of the teachers’ names.” Id. The documents provided by Mr. Griffin on behalf of his clients included the combined state and local salary of each teacher, total salary costs for each level of experience in education and other requested information by the Complainants. Mr. Griffin represented in his March 1, 1995 letter the collectively the school districts he represented still declined to provide the teachers’ names that corresponded with the salary, position, and experience records already provided to the Attorney General and Complainant.

THE LAW

*2 29 Del. C. § 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.”

29 Del. C. § 10002(d) . Definitions.

“(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;

(8) Any records involving labor negotiations or collective bargaining;….”

DECISION AND ORDER

After a careful review of the above statutory provisions contained in 29 Del. C. § 100 et seq. and the various case authorities cited and/or adopted by the school districts’ we find that all school districts must produce the names of the teachers as public records under the Act. We find no statutory exception contained in 29 Del. C. § 10002(d) which would exempt the names of the teachers as non-public records.

The only Delaware case cited by the school districts on this issue is Gannett Company, Inc. and Laurie Hays v. Ray W. Christian, Superintendent and Colonial School District, Del. Super., C.A. No. 82M-DE26, Balick, J. (August 10, 1983). The Superior Court through Judge Balick ruled as follows;

“Without discussing the authorities cited in the brief’s in detail, I will simply state my conclusion that they support Plaintiffs’ position. Although some might feel that the amount of their salary is personal, it is generally recognized that the public has a legitimate interest in knowing the salaries of persons who are payed with public funds and public employees have no right of privacy in this information.” (Id. at 1). (Emphasis supplied).

This office has reviewed its opinions previously rendered on this topic. See Atty Gen. Op. No. 77-27(3W-077). In that opinion, the Attorney General ruled that status of the law permits the disclosure of information requested, namely the names, job classifications, and salaries of all state employees in Delaware. See also, Atty Gen. Op. No. I-78-37 (Request No. 3W-023). For the reasons which shall be enumerated below, we find the names and salaries of the teachers are also public records and must be produced to the Complainant.

*3 The cited opinion in Atty Gen. Op. No. 77-27, Mans v. Lebanon School Board; N.H. Supr., 290 A.2d 866 (1972) held that a resident taxpayer was entitled to individual teachers’ salaries as public records. The New Hampshire Supreme Court applied a balancing test and concluded that the pendulum swung in favor of producing these public documents;

In determining whether salaries are exempt as financial information or as private information the benefits of disclosure to the public are to be balanced against the benefits of non-disclosure to the administration of the school system and to the teachers. See, McQuillan, Municipal Corporations, S.14.14 (3d.ed 1969)

This office believes the rationale adopted by the New Hampshire Supreme Court in Mans applies to the public documents sought in the instant complaint by the Complainant;

There is no doubt that teachers and the teaching profession have a sincere conviction that public access to their individual salaries would be embarrassing to them and not in the best interest of the efficient management of school affairs. However, it should be noted that for many years in this state salaries of public officials and employees, state and municipal, have been commonly published by statute (RSA ch. 94, Laws 1972, 60:46), or made available to the public or disclosed voluntarily without significant damage to individual dignity or the efficient management of the state system. (Emphasis supplied).

Mans v. Lebanon School Board, 290 and at 868. Later, the Supreme Court of New Hampshire in Brent v. Paquette, N.H. Supr., 567 A.2d 976 (1989) reaffirmed its findings that “[t]his court has determined that this provision (“records pertaining to … confidential … information … and other files whose disclosure would constitute invasion of privacy, RSA 91-A:5, IV (Supp. 1988) of its Freedom of Information Act”) does not exempt teachers’ contracts and salary information from public inspection (citing Mans v. Lebanon School Board, N.H. Supr., 290 A.2d 866 (1972) . 4 We believe the same analysis applies to the instant complaints. Applying the same balancing test, the teachers’ names constitute public records and should be produced.

Other reported cases support this office’s conclusion that the teachers’ names should be produced as public record. People ex rel. Recktanwal v. Janurg, Ill. App., 376 N.E.2d 22 (1978) , (salary records of employees of county forest preserve district are public records); Moberly v. Herbold Sheimer, Md. Supr. Ct., 345 A.2d 855 (1975) (salaries of state, county, and municipal employees are public records); Gannett Co., Inc. v. County of Monroe, N.Y. Appeals, 383 N.E.2d 1151 (1978) N.Y. App. Div., 411 N.Y.S. 2d 557 (1977) (records of former county employees were public records to which public access was statutorily authorized); Board of School Directors v. Wisconsin Employment Relations Commission, Wisconsin Supr. Ct., 168 N.W.2d 92 (1969) (salaries of municipal employees, including teachers were matters of public records).

*4 Other more practical reasons support the conclusion that the teachers’ names are public records. The names of the teachers clearly are obtainable through sources outside each Districts “personnel, clerical, or pupil file.” See, 29 Del. C. § 10002(d)(1) . In fact, it appears that the “charts” produced and compiled by the school districts indicate the teachers’ names have been redacted but are otherwise available. As stated above, the Complainant does not seek public records in its amended complaint which appear in the W-2 salary form of school teachers prohibited by 30 Del. C. § 368 .

Second, the school districts collectively also assert in their respective answers to the complaint that the teachers’ names constitute “records involving labor negotiations or collective bargaining” pursuant to 29 Del. C. 10002(b)(8) . We find no factual basis in the record to support this exemption in 29 Del. C. § 10002(b)(8) . The teachers whose names are sought for 1994 Fiscal Year are on the school districts’ payroll supported by citizen taxpayer dollars. Whether the teachers through union activities or negotiations are actively negotiating a contract is a separate and distinct issue from providing their teachers’ names paid by taxpayer funds.

This office must note several other basis for requiring the names of the school teachers’ which correspond with the salaries and other public data already provided to the Complainants. First, the school districts have not asserted that the names of its teachers are not available from sources outside the W-2 salary information. Second, we believe the Freedom of Information Act, including the public document provisions contained in 29 Del. C. § 10003(a) should be liberally construed. See e.g. Delaware Solid Waste Authority v. News Journal, Del. Supr., 480 A.2d 628 (1984) . Third, nor have the school districts asserted, as in some public document requests, that public disclosure of the payroll, salary and names of individual teachers would create such an administrative burden or such administrative expenses such as to preclude disclosure. Fourth, applying the balancing test used in considering whether the production of the names and salary of teachers would constitute “an invasion of personal privacy pursuant to 29 Del. C. § 10002(a)(1) ” if disclosed, the school districts have not articulated, nor has this office determined, that the release of their names is protected by the Act or that teachers names are the kind of public information that would invade their personal privacy. The teachers’ salaries are paid by public taxpayer funds. The school districts did not articulate in a factual setting how the release of the names would invade their personal privacy. We find that the names of teachers is “simply not information of a highly personal nature” under 29 Del. C. § 10002(d)(1) that would preclude disclosure to the citizens of Delaware whose taxes pay their salaries.

*5 Therefore, the school districts are directed to provide this information within seven (7) calendar days. If the names of the teachers by all subject school districts are not released to the Complainants during that time period, the Attorney General shall invoke the enforcement provisions of 29 Del. C. § 10005(e) . 5

Very truly yours,

John K. Welch

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

Michael J. Rich

State Solicitor

Note

TO RETRIEVE THE FULL TEXT OF THE ATTACHED OPINION(S) SET FORTH AT THIS POINT, ENTER THE FOLLOWING FIND:

FI 106034591

FI 106034592

FI 106034602

Footnotes

1

Counsel for the School Districts requested additional time to respond with supplemental legal argument to the Attorney General. As such, the Attorney General treats the complaint as an alleged continuing violation of the Act. The opinion therefore meets the twenty (20) day statutory period to be issued in accordance with 29 Del. C. § 10005(e) as to “whether a violation of the Act has occurred or is about to occur.”

2

In a letter dated February 27, 1995 to James D. Griffin, Esquire, Mr. Michael J. Pelrine clarified his document request and stated he was seeking “the degree status of each employee, the total number of years experience for each employee, total salary, and the different portions of contribution which comprise that total salary.”

3

The Seaford School District did produce public records that listed all professional staff in the district by number, the degree status of each employee, the total number of years experience for each employee, total salary, and the different portions of contribution which comprised that total salary. (Seaford Response dated February 24, 1995 page two, ¶ 2). Included in the “professional staff category” were teachers, counselors, social workers, speech therapists, educational diagnosticians, librarians, school psychologists and nurses. In a letter supplemental response held with this office on February 24, 1995, Mr. Akin provided a “six page spread” of all Seaford School District FY ’95 Professional Staff” (copies attached).

4

It must be noted that under the Federal Privacy Act of 1974, 5 U.S.C. § 552(a) , no reported case could be found that argued disclosure of payroll or salary information would be in violation of 54 U.S.C. § 552(b)(6) as a “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy.” See, 100 A.L.R.3d at 701.

5

In Atty Gen. Op. No. I-78-37, the Attorney General restated and adhered to its position that the gross salary of state employees is public information. The Opinion noted while the gross salary was disclosable to the public, the detailed information contained in payroll records such as withholding taxes, social security deduction, elective healthcare insurance, and other types of elective deductions were not disclosable. In the instant case, the Complainants do not seek this information. Nor has it not been provided to the Complainants.

Del. Op. Atty. Gen. 95-IB13 (Del.A.G.), 1995 WL 794545

End of Document
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