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International Association of Firefighters, Local 1264 v. Municipality of Anchorage (2/12/99), 973 P 2d 1132
<![CDATA[
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
INTERNATIONAL ASSOCIATION OF )
FIRE FIGHTERS, LOCAL 1264, ) Supreme Court No. S-7993
)
Appellant, )
) Superior Court No.
v. ) 3AN-97-243 CI
)
MUNICIPALITY OF ANCHORAGE ) O P I N I O N
and ANCHORAGE DAILY NEWS, )
)
Appellees. ) [No. 5081 - February 12, 1999]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Karen L. Hunt, Judge.
Appearances: Charles A. Dunnagan, Jermain,
Dunnagan & Owens, P.C., Anchorage, for Appellant. Ann Waller
Resch, Deputy Municipal Attorney, and Mary K. Hughes, Municipal
Attorney, Municipality of Anchorage, for Appellee Municipality of
Anchorage. D. John McKay, Law Office of D. John McKay, Anchorage,
for Appellee Anchorage Daily News.
Before: Matthews, Chief Justice, Compton,
Eastaugh, and Bryner, Justices. [Fabe, Justice, not participating.]
MATTHEWS, Chief Justice.
I. INTRODUCTION
The International Association of Fire Fighters, Local
1264, (IAFF) sought a declaratory judgment and an injunction to
prevent the Municipality of Anchorage (MOA) from releasing
municipal employees' names in conjunction with their salaries to
the Anchorage Daily News (News). IAFF alleged that the disclosure
violated article I, section 22 of the Alaska Constitution and
Anchorage Municipal Code (AMC) section 3.90.040(B) (1996). We
affirm the superior court's decision that the disclosure did not
violate the employees' constitutional or statutory rights to
privacy, and hold that municipal employees do not have a reasonable
expectation of privacy in their names and salaries.
II. FACTS AND PROCEEDINGS
MOA has released a salary list of municipal employees
annually since before 1982. This list includes employees' names,
job titles, departments, base salaries, overtime, benefits, and
cashed-in leave. Information from the list, such as names and
salaries of the highest-paid municipal employees, has been
subsequently published by the News.
On September 12, 1996, IAFF's attorneys requested that
MOA release the information by job classifications instead of by
individual names. When MOA did not respond by January 9, 1997,
IAFF filed a complaint in superior court seeking an injunction and
a declaratory judgment that MOA's disclosure of specific employees'
names in conjunction with their salaries violated their
constitutional and statutory rights to privacy. The News then
intervened in the action.
The superior court held that the disclosure was not an
unwarranted invasion of privacy, because the municipal employees do
not have a reasonable expectation of privacy in the amount of
public money they are paid. The court also stated that even if
IAFF had established a privacy right, it was outweighed by the
countervailing "public interest in disclosure." The superior court
issued a final judgment denying injunctive relief and dismissing
the action with prejudice.
IAFF appeals this decision.
III. DISCUSSION [Fn. 1]
A. MOA Did Not Violate the Municipal Employees'
Constitutional Right of Privacy by Disclosing Their Names in
Conjunction with Their Salaries.
Article I, section 22 of the Alaska Constitution
provides: "The right of the people to privacy is recognized and
shall not be infringed. The legislature shall implement this
section." IAFF argues that MOA violated the municipal employees'
right to privacy under article I, section 22 of the Alaska
Constitution by disclosing their names in conjunction with their
salaries. This court has recognized that "under appropriate
circumstances, a statute requiring the disclosure of a person's
identity must yield to the constitutional right to privacy."
Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 980 (Alaska 1997).
Thus, MOA could not disclose the municipal employees' names and
salaries if the disclosure would violate their constitutional
privacy rights.
To determine whether the disclosure of public records
violates Alaska's constitutional right to privacy, we apply the
following test:
(1) does the party seeking to come within
the protection of the right to [privacy] have a legitimate
expectation that the materials or information will not be
disclosed?
(2) is disclosure nonetheless required to
serve a compelling state interest?
(3) if so, will the necessary disclosure
occur in that manner which is least intrusive with respect to the
right to [privacy]?
Id. (alteration in original) (quoting Jones v. Jennings, 788 P.2d
732, 738 (Alaska 1990)).
IAFF argues that municipal employees have a legitimate
expectation of privacy in their names and salaries because that
information is contained in their personnel files, and is intimate
and sensitive information that reveals their financial status. The
News and MOA, however, argue that salary information is not
personal or private, even if included in a personnel file, and that
public employees lack a legitimate expectation of privacy regarding
such information.
To show that disclosure of the municipal employees' names
and salaries violates their constitutional right to privacy, IAFF
must first demonstrate that the municipal employees have a
"legitimate expectation that the materials or information will not
be disclosed." Alaska Wildlife Alliance, 948 P.2d at 980. Such an
expectation is one that "society is prepared to recognize as
reasonable." Nathanson v. State, 554 P.2d 456, 458-59 (Alaska
1976) (quoting Katz v. United States, 389 U.S. 347, 361 (1967)
(Harlan, J., concurring)). The right to privacy is not absolute;
it protects "intimate"or "sensitive personal information . . .
which, if disclosed even to a friend, could cause embarrassment or
anxiety." Doe v. Alaska Superior Court, Third Judicial Dist., 721
P.2d 617, 629 (Alaska 1986) (citations omitted).
IAFF first argues that we have already held that public
employees have a legitimate expectation of privacy in their
personnel files, which, it claims, includes their names and
salaries. In Jones, 788 P.2d at 738-39, an excessive force tort
case, we indicated that police officers had a legitimate expecta-
tion of privacy in their personnel records, which contained their
names, addresses, and personal financial information, noting that
personnel files "'contain the most intimate details' of an
employee's work history." The confidentiality of salary informa-
tion, however, was not at issue in Jones. The trial court in that
case had allowed the policemen's salary information to be withheld
until the damages stage of the suit, and the permissibility of its
disclosure was not raised before the supreme court. See id. at
734.
In Alaska Wildlife Alliance, we held that time sheets
were not personnel records under AS 39.25.080, the Alaska Personnel
Act. [Fn. 2] This section provides that "[s]tate personnel
records"are confidential, and not open to public inspection. [Fn.
3] We emphasized in Alaska Wildlife Alliance that the protected
personnel records were of a type similar to the examples in the
statute, such as "employment applications"and "examination
materials,"which "contain details about the employee's or
applicant's personal life." Id. at 979-80. The exceptions to the
confidentiality requirement, including "compensation authorized,"
"tell[] little about the individual's personal life, but instead
simply describe[] employment status." Id. at 980. We also noted
that courts in other states have found that payroll records,
vacation, and sick leave attendance records are disclosable because
they are not "private facts of a personal nature." Id. at 979-80
(citations omitted).
Thus we have defined the term "personnel record"
narrowly, to include only information which reveals the details of
an individual's personal life. Id. at 980. Our statement in Jones
that personnel files contain intimate details about "work history"
is consistent with this analysis. Work history is personal
information, but it only includes information like employment
applications and examination materials -- not information such as
base salary and benefits. Id. at 979-80. When Jones and Alaska
Wildlife Alliance are read together, it is clear that employees
only have a legitimate expectation of privacy in the personal
information contained in their personnel records. The employees'
names and salaries, however, are not personal information, and
would not be protected by the constitutional right to privacy under
our decisions in Jones and Alaska Wildlife Alliance.
IAFF also argues that language from our decisions in
State v. Glass, 583 P.2d 872 (Alaska 1978), and State, Department
of Revenue v. Oliver, 636 P.2d 1156 (Alaska 1981), demonstrates
that they have a legitimate expectation of privacy in their
salaries, because it is information about their "personal
finances." In Glass, we partially justified our holding that
electronic surveillance violated the right to privacy with the
following statement: "Clever prodding may elicit thoughtless
comments about sex, religion, politics, acquaintances, personal
finances and even one's innermost thoughts." Id. at 878. This
statement, however, was merely a passing reference to "personal
finances"in a search and seizure case, and does not control the
issue of whether public employees' salaries are private
information. In Oliver, we stated that Glass "alludes to personal
finances as one kind of information within an individual's
expectation of privacy." 636 P.2d at 1166 (citing Glass, 583 P.2d
at 878). However, we did not decide whether taxpayers had a
legitimate expectation of privacy in their income tax information,
because the State conceded this point. Id. This statement in
Oliver, therefore, is merely dictum. These statements do not
address the question whether the salary of a public employee falls
within the concept of protected personal finances.
Several other jurisdictions have held that public
employees do not have a privacy expectation in their names and
salaries. [Fn. 4]
Furthermore, salaries of public employees are not merely
private matters.
[O]ne aspect of a private matter is that it is
private, that is, that it does not adversely affect persons beyond
the actor, and hence is none of their business. When a matter does
affect the public, directly or indirectly, it loses its wholly
private character, and can be made to yield when an appropriate
public need is demonstrated.[ [Fn. 5]]
Because the amount public employees are paid clearly affects the
public, following Luedtke, the salary information in this case
cannot be considered "wholly private."
Other states have also held that public employees have a
reduced expectation of privacy. [Fn. 6]
We thus hold that municipal employees do not have a
legitimate expectation of privacy in their names and salaries.
Even if this information is included in their personnel records, it
is not sensitive or personal. In addition, as public employees,
they have a reduced expectation of privacy in their salaries, which
are clearly of legitimate public concern. Thus disclosure of their
names and salaries does not violate their constitutional right to
privacy.
B. MOA Did Not Violate AMC 3.90.040(B) by Disclosing the
Municipal Employees' Names in Conjunction with Their Salaries.
IAFF also argues that MOA's disclosure of the municipal
employees' names in conjunction with their salaries violated AMC
3.90.040(B). The Anchorage Municipal Code mandates full disclosure
by the municipality of all public records, except those prohibited
from disclosure by section 3.90.040 or other law. See AMC
3.90.030. [Fn. 7] The disclosure provision must be "liberally
construed to require full disclosure of all public records . . .
except those specifically exempted under section 3.90.040." AMC
3.90.010. [Fn. 8] One of the specific exceptions to disclosure is
AMC 3.90.040(B), [Fn. 9] which prohibits disclosure of information
contained in a personnel file if the information both "reveal[s]
the financial . . . status of any specific individual,"and "would
constitute an unwarranted invasion of privacy." Jones v. Jennings,
788 P.2d 732, 736 (Alaska 1990) (alteration in original).
Independent analysis of whether MOA's disclosure of the
municipal employees' names and salaries violated AMC 3.90.040(B) is
not necessary, however. To satisfy this exception from disclosure,
the disclosure must be an "unwarranted invasion of privacy." AMC
3.90.040(B). Determining whether disclosure is an "unwarranted
invasion of privacy"depends on the same considerations discussed
above concerning the constitutional right to privacy. Public
employment salary information is not information of a personal
nature and its disclosure is justified by the public interest.
Therefore the disclosure exception does not apply, and the
information was properly disclosed pursuant to AMC 3.90.030.
IV. CONCLUSION
As public employees, the municipal employees do not have
a legitimate expectation of privacy in their names and salaries.
We AFFIRM the superior court's decision that the disclosure did not
violate the municipal employees' constitutional or statutory rights
to privacy.
FOOTNOTES
Footnote 1:
The question of whether article I, section 22 of the Alaska
Constitution or AMC 3.90.040(B) prohibits disclosure of the
municipal employees' names in conjunction with their salaries is a
question of law which this court reviews de novo. See Jones v.
Jennings, 788 P.2d 732, 735 (Alaska 1990). We will "adopt the rule
of law that is most persuasive in light of precedent, reason, and
policy." Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Footnote 2:
See Alaska Wildlife Alliance, 948 P.2d at 979-80 (holding that
public employees and private contractors involved in wolf control
program had legitimate expectation that state would not disclose
their names because they had received credible threats of harm).
Footnote 3:
AS 39.25.080 provides in part:
(a) State personnel records, including
employment applications and examination materials, are confidential
and are not open to public inspection except as provided in this
section.
(b) The following information is
available for public inspection, subject to reasonable regulations
on the time and manner of inspection:
(1) the names and position titles of all
state employees;
(2) the position held by a state
employee;
(3) prior positions held by a state
employee;
(4) whether a state employee is in the
classified, partially exempt, or exempt service;
(5) the dates of appointment and
separation of a state employee; and
(6) the compensation authorized for a
state employee.
Footnote 4:
See, e.g., Pottle v. School Committee of Braintree, 482 N.E.2d
813 (Mass. 1985) (upholding disclosure of public employees' names
and addresses); Hastings & Sons Pub. Co. v. City Treasurer, 375
N.E.2d 299, 301-04 (Mass. 1978) (holding that disclosure of
municipal employees' payroll records, including their names,
addresses, base pay, overtime, miscellaneous payments and gross
pay, did not violate constitutional right to privacy because
information was not "intimate details of a highly personal nature";
names and salaries were not type of information legislature
intended to exempt as personnel records) (citations omitted); State
ex rel. Jones v. Myers, 581 N.E.2d 629, 630-31 (Ohio Misc. 1991)
(holding that disclosure of payroll records, which included names,
earnings, statutory withholdings, vacations, sick leave,
garnishments, and court-ordered support payments, did not violate
privacy because "[t]he public has an absolute right to ascertain
the earnings of its servants"; however, deductions for deferred
compensation plans, savings bond investments and Christmas club
should not be disclosed because this type of information was
personal financial information).
Footnote 5:
Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1135
(Alaska 1989) (quoting Ravin v. State, 537 P.2d 494, 504 (Alaska
1975)); see also City of Kenai v. Kenai Peninsula Newspapers, Inc.,
642 P.2d 1316, 1324 (Alaska 1982) (recognizing that applicants for
high government positions expose their private lives to public
scrutiny).
Footnote 6:
See, e.g., Braun v. City of Taft, 201 Cal. Rptr. 654, 662
(Cal. App. 1984) ("Although one does not lose his right to privacy
upon accepting public employment, the very fact that he is engaged
in the public's business strips him of some anonymity."); Pottle,
482 N.E.2d at 817 (stating that public employees have "diminished
expectations of privacy"); Hastings, 375 N.E.2d at 304 (stating
that municipal employees are subject to restrictions and
regulations not affecting private employees).
Footnote 7:
AMC 3.90.030 provides in part:
Except as provided by section 3.90.040,
or by other provisions of municipal, state or federal law, the
municipality shall make all public records open to inspection by
any person subject to guidelines regulating the time, place and
manner of inspection which may be adopted by the municipal mayor
pursuant to section 3.90.050. The types of records and information
open to public inspection pursuant to this chapter shall include
but shall not be limited to the following:
. . . .
D. Salary levels and fringe benefits
accorded municipal officers and employees by law, including
information in regard to the pay range and step grade of an
employee or officer, and statistical analyses or compilations
relating to municipal practices and policies concerning
compensation for various occupational groups, departments and
divisions.
(Emphasis added.)
Footnote 8:
AMC 3.90.010 provides:
It is the policy of the municipality to
provide the fullest and most rapid public access to municipal
records and information so that the right of the people to remain
informed is protected. In enacting this measure, the assembly
recognizes the competing interests of personal privacy and the
right of the public to have access to information concerning the
conduct of the people's business. This chapter shall therefore be
liberally construed to require full disclosure of all public
records in the possession or control of any municipal agency,
except those specifically exempted under section 3.90.040.
Footnote 9:
AMC 3.90.040 provides in part:
This chapter shall not be construed to
require disclosure of:
. . . .
B. Personnel, payroll or medical files,
equal rights commission files or other files which reveal the
financial or medical status of any specific individual, the release
of which would constitute an unwarranted invasion of privacy.
C.
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