No Privacy Right Protects Against Disclosure Of Income Of Police Officers Earning High Wages

Reporters from two newspapers published by Contra Costa Newspapers, Inc. petitioned the City of Oakland under the California Public Records Act for records indicating the name, job title, and gross salaries of all City employees who earned at least $100,000 in fiscal year 2003-2004. The City refused to identify individuals with such earnings, relying on a provision of the California Government Code that would exempt personnel files from disclosure if the disclosure “would constitute an unwarranted invasion of personal privacy.” The City also relied on a provision of the California Penal Code which protects the confidentiality of police officer personnel records.
The California Court of Appeals overturned the City’s action, and ordered the disclosure of the records.

The Court started its opinion with the notion that “the tension between privacy rights and disclosure is inherent and explicit in the Public Records Act.” The Court found that the Legislature had “weighted the scales in favor of disclosure” by requiring government agencies to shoulder the burden of establishing that an exemption from disclosure existed.

With respect to the provision of the law referring to an employee’s right of privacy, the Court found that for a privacy right to exist there must be (1) a legally-protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) a serious invasion of privacy.

The Court concluded that “the public interest in budget transparency is incompatible with the notion that public employees have the right to keep their salaries private. A review of the case law in other states reveals that disclosure of public employee names and salaries is overwhelmingly the norm.

“The Oakland City Council, our state Legislature, the legislatures of other states, and Congress have all demonstrated, through affirmative enactments or the failure to respond to regulations or court decisions requiring disclosure, that the salaries paid to public employees are public records, not private matters. California voters have recently approved a constitutional amendment enhancing the right of public access to government records. Our conclusion is also consistent with the ballot arguments considered by the voters when they approved the addition of a privacy right to our state constitution.”

The Court had to deal with the fact that a separate division of the California Court of Appeals had in fact ruled that police officers had privacy interests that prevented the public disclosure from their salaries. After a lengthy analysis, the Court concluded that the other court decision “gave insufficient consideration to the burden placed on parties resisting disclosure under the Public Records Act, and to the limited nature of the intrusion into personal finances occasioned by the release of gross salary data for named public employees.”

The Court also had to deal with a provision of the California Peace Officers Bill of Rights that appears to explicitly give privacy rights to “personal data,” defined by statute as including “education and employment history” and “employee advancement, appraisal or discipline.” While the Court acknowledged there was some support for the argument of the Oakland Police Officers Association for the notion that the Bill of Rights would not allow the disclosure of salary records, the Court found “this reading of the statute is demonstrably overbroad. It would make confidential not only the kinds of information specified by the Legislature, but also any information from any file containing any item relating to confidential information. We do not believe the Legislature intended to paint with so broad a brush. Peace officer payroll records might be considered ‘related to’ confidential personnel records, but they are not themselves such records unless their disclosure amounts to an unwarranted invasion of privacy.

International Federation of Professional and Technical Engineers, Local 21 v. Superior Court, 2005 WL 880205 (Cal.App. 2005).

This article appears in the June 2005 issue