Summary
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
Summary of this case from Local 1264 v. Municipality of AnchorageOpinion
No. 90-CIV-374.
Decided May 6, 1991.
Cloppert, Portman, Sauter, Latanick Foley and Robert W. Sauter, for relator.
Christopher E. Veidt, for respondent.
This matter was submitted on stipulations, evidence, and written arguments upon a complaint in mandamus filed by the Hocking County Sheriff, James P. Jones, against the Hocking County Auditor, Leonard Myers, seeking disclosure of the complete computerized payroll record of Hocking County, Ohio, for a certain two-week period in 1990.
On October 25, 1990 Sheriff Jones filed a written request with Auditor Myers for a copy of the pay register for all various county offices for the pay period of October 7 through October 25, 1990. The respondent, Myers, refused to provide the requested records.
On December 2, 1990, the relator, Jones, filed a complaint in mandamus seeking disclosure of all information originally requested, i.e., the payroll register. It is apparent from testimony and from an exhibit (a payroll register previously and routinely supplied by the auditor to the sheriff, until the present controversy) that the payroll register requested will contain not only the employee's name, pay, statutory deductions and other mundane items, but also child support payments, garnishments, savings bond withholdings and other items considered by the auditor to be sufficiently protected by the employee's federal and state privacy rights to prohibit disclosure.
R.C. 149.43(C) provides that a person who is aggrieved by the failure of a governmental agency or person responsible to promptly make a public record available may commence an action in mandamus. The relator must establish: (1) a clear legal right to the relief requested; (2) a clear legal duty on the part of the respondent to perform the requested act; and (3) that relator has no plain and adequate remedy at law.
Sheriff Jones relies upon R.C. 149.43(B) as his mandate of legal right, which states:
"All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units shall maintain public records in such a manner that they can be made available for inspection in accordance with this division."
The term "public record" is defined in R.C. 149.43(A)(1) as "* * * any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, except medical records, records pertaining to adoption, probation, and parole proceedings, records pertaining to actions under section 2151.85 of the Revised Code * * *, trial preparation records, confidential law enforcement investigatory records, and records the release of which is prohibited by state or federal law."
Findings of Fact
The sheriff is included in the class defined by the statute, i.e., "any person," and the auditor admittedly has the requested information. The information is a record kept by a public office whether or not required to be kept. Unless the auditor can demonstrate that the information is otherwise excepted from release, it is a public record and subject to disclosure.
Public policy requires this court to liberally construe the provisions of the statute defining public records and to strictly construe the exceptions set forth. Any doubt must be resolved in favor of disclosure. While the relator, through counsel, demands complete disclosure of all items contained on the payroll register, it is clear from the testimony of Sheriff Jones that he is not interested in interfering with the individual privacy rights of county employees. He is, however, interested in all items legally obtainable through the statute. His motives, though clear and proper, are not relevant to this proceeding.
The respondent argues that a balancing test is required where privacy interests compete with disclosure requirements. The relator maintains that the statute contains no privacy exception and its provisions are absolute. However, R.C. 149.43(A)(1) expressly provides that "records[,] the release of which is prohibited by state or federal law," are not public records. The United States and Ohio Constitutions have repeatedly been held to provide privacy rights and the Ohio Legislature has codified some privacy rights in R.C. Chapter 1347.
In State, ex rel. Fant, v. Pub. Emp. Retirement Bd. (May 30, 1989), Franklin App. No. 89AP-37, unreported, 1989 WL 57583, cited by the respondent, the court determined that, although a retiree's home address is a public record, the disclosure of a retiree's home address would violate his right to privacy, where the purpose of seeking the home address was to perfect service of process. This analysis does not pertain to the present case. If disclosure of the information contained in the record would violate the law, the matter is, by definition, not a public record. The balancing test referred to in Fant was pronounced in Wooster Republican Printing Co. v. Wooster (1978), 56 Ohio St.2d 126, 134-135, 10 O.O.3d 312, 317, 383 N.E.2d 124, 129: (1) whether disclosure would result in an invasion of privacy and, if so, how serious; (2) the extent or value of the public interest, purpose or object of the individuals seeking disclosure; and (3) whether the information is available from other sources.
"An invasion of privacy occurs when disclosure would subject a person to embarrassment, harassment, physical danger, disgrace, or loss of employment or friends. * * *" Kilroy v. Natl. Labor Relations Bd. (S.D. Ohio 1985), 633 F. Supp. 136, 143. The court must now apply the Fant-Wooster standard to each item on the pay register to determine whether the item is a public record or not. However, there is no evidence upon which the court can determine the nature of every line item for each employee and, therefore, the most common categories will be addressed.
Conclusions of Law
1. The employee's name, designation, employee number, and earnings are public records because no privacy issue exists. The public has an absolute right to ascertain the earnings of its servants. In addition, the issue is moot by stipulation and prior disclosure.
2. Statutorily withheld federal, state and city taxes, and retirement deductions must be disclosed, notwithstanding that they might be determined by consulting government publications because no privacy right will be invaded according to the Kilroy standard.
3. The vacation and sick leave record must be disclosed. The value of the public interest therein is great, and while the privacy of a sick employee might suffer from disclosure, the invasion is only slight when compared to public interest in preventing the abuse of vacation and sick leave in the public arena. Furthermore, this information is not available elsewhere.
4. Amounts for purchase of retirement service credit and deductions for medical or hospitalization insurance are likewise obviously subject to disclosure under the Kilroy criteria and the Fant-Wooster standards.
5. Deductions for deferred compensation plans, savings bond investments and Christmas club are not public records for the following reasons: A person has a right of privacy in personal financial matters, consisting of the right to protect investments and certain debts and assets from public disclosure, which right does not evaporate upon entering public employment. The court further finds that the sheriff has expressed no particular interest in discovering these items, but has simply requested that this court provide him with all information available by law. Disclosure of these three financial items would substantially invade the right of privacy of the employee, and the value of public interest would be very slight, even though the information is not available elsewhere. The sheriff's interest in ascertaining whether co-payments are made to savings clubs by the county is legitimate (especially in light of possible allegations of illegal co-payments), but where public interest is based solely on suspicion, the value is inconsequential in comparison to significant individual privacy interests.
6. The remaining items, such as garnishments and court-ordered support payments, are public records. Any invasion of privacy which would occur by their disclosure is slight, since court orders perfecting their deduction are public records, and the public interest and the public value in knowing that judgments are being paid and children are being supported are great. While the information may be available elsewhere, it is not readily available because it could require random research throughout the state of Ohio.
In closing, the sheriff and the public have a right to know nearly all of the payroll register of the county, with the few exceptions noted.
Attorney Fees
An award of attorney fees is not appropriate in this cause. Both litigants' fees will be paid from the county treasury by prior orders entered herein, and the court finds no evidence of bad faith on the part of the respondent. In addition, the refusal to comply was reasonable in light of the uncertainties surrounding the public disclosure law.
Execution
The parties shall comply with the disclosure orders contained herein within ten days. Costs to be paid by the county.
The clerk shall serve notices as set forth in Civ.R. 58. This is a final, appealable order.
Judgment accordingly.