New Castle County - Civil Division July 30, 1998 The Honorable Lisa Blunt-Bradley Office of The Secretary Department of Labor 4425 North Market Street Wilmington, DE 19802 Re: Sworn Payroll Information 29 Del. C. § 10002 Dear Secretary Blunt-Bradley: In Attorney General Opinion No. 95-IB03 (Jan. 25, 1995), this Office opined that sworn payroll statements filed by contractors with the Delaware Department of Labor ("DOL") pursuant to 29 Del. C. § 6912(c) were public records under the Delaware Freedom of Information Act, 29 Del. C. ch. 100 ("DFOIA"), with the exception of employee social security numbers.1 That Opinion relied heavily on the holding in I.B.E.W. v. United States Dep't of Hous. & Urban Dev., 852 F.2d 87 (3rd Cir. 1988) ("IBEW"), which permitted the disclosure of employee names and addresses, but not social security numbers, under the Federal Freedom of Information Act, 5 U.S.C. § 552 ("FFOIA"). The union in IBEW requested contractor payroll records submitted to the United States Department of Labor pursuant to the Davis-Bacon Act.2 Recently, the Third Circuit in Sheet Metal Workers Int'l Ass'n v. United States Dep't of Veterans Affairs, 135 F.3d 891 (3rd Cir. 1998)("Sheet Metal Workers") modified its earlier decision in IBEW. The Court in Sheet Metal Workers found that the disclosure of employees' names and addresses is no longer required as a consequence of heightened personal privacy concerns raised by decisions in other Circuits and the United States Supreme Court.3 I. THE ISSUES In light of the Sheet Metal Workers decision, your predecessor asked this Office for legal advice on two questions. First, whether the DOL should discontinue the practice of releasing the names and addresses of employees listed in sworn payroll reports. Second, whether the DOL is required to release the names and addresses of apprentices registered with the Apprenticeship and Training Program. For the reasons explained below, we conclude that the DOL should discontinue the practice of releasing the names and addresses of employees listed in sworn payroll reports. We further conclude that the DOL is not required to release the names and addresses of apprentices registered in the Department's Apprenticeship and Training Program. As a result of our conclusions, Attorney General Opinion No. 95-IB03 (Jan. 25, 1995) is hereby rescinded and superseded by this Opinion. II. SWORN PAYROLL REPORTS In Sheet Metal Workers, the Court balanced the employee's personal privacy interest, recognized by 5 U.S.C. § 552(b)(6), against a labor union's interest in obtaining the names, addresses and social security numbers of employees submitted in sworn payroll information reports submitted by contractors to the federal government to ensure compliance with prevailing wage laws. 135 F.3d at 896. The Court reasoned that employees have a significant personal privacy interest in not receiving solicitations through the mail at home. Id. at 900. The Court noted that there are other less intrusive methods of obtaining the information. Namely, the union could distribute fliers as employees arrive and leave work, post signs or use existing information to compare job classifications with pay rates. Id. at 904. The Third Circuit took heed of more recent FOIA decisions in which the United States Supreme Court analyzed the right to access public records by reference to the "core function" of FOIA: to allow citizens to know what their government was doing. In a modern, highly regulated society, the government has in its possession vast data banks of highly personal information, which citizens are required to provide as a condition of receiving a license or other government benefit. The core function of FOIA is not served by making that information available to third parties to use for their own commercial or other purposes. Any public policy in favor of open government may have to give way to the greater right of personal privacy. Accordingly, the Court modified its prior holding in IBEW by permitting the federal government to withhold the names, addresses and social security numbers of employees from FFOIA requests by labor unions for sworn payroll information required under the Davis-Bacon Act. Id. at 905. Similarly, the purpose of Delaware's FOIA is to provide the public with access to public records which will "enable citizens to observe and monitor state government." 29 Del. C. § 10001. (emphasis supplied). Public records are defined in 29 Del. C. § 10002(d) as information of any kind relating to public business which is stored, recorded or reproduced. Further, public records must be "open to inspection and copying by any citizen of the State." 29 Del. C. § 10003(a). However, there are statutory exemptions to public disclosure under Delaware's FOIA:
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.
29 Del. C. § 10002(d)(1). The purpose of this exception is to protect personal privacy. See Delaware Solid Waste Auth. v. News-Journal, Del. Supr., 480 A.2d 628, 631 (1984). When the Delaware prevailing wage law is silent on an issue, it is appropriate to consult the federal law interpreting its purposes and policy. Att'y Gen. Op. No. 80-IO23 (July 9, 1980). The Davis-Bacon Act, 29 Del. C. § 6960 requires that laborers and mechanics be paid prevailing wages on state public construction projects. Further, " [e]very contract based upon these specifications shall contain a stipulation that sworn payroll information, as required by the Department of Labor, be furnished weekly" to verify compliance with the state prevailing wage law. 29 Del. C. § 6960(c). The Delaware FOIA, like its federal counterpart, recognizes a strong personal privacy interest in 29 Del. C. § 10002(d)(1). The purpose of making public records accessible is to enable citizens to monitor state government. 29 Del. C. § 10001. This equates to the "core purpose" that contributes to public understanding of the government, articulated in Sheet Metal Workers. We have previously issued an opinion to the Division of Revenue that the DFOIA does not require the disclosure of the names and addresses of business license holders. Such information is within the realm of traditional privacy, and disclosure does not "appear to further the purpose of FOIA to assure that the public processes and records of government are open." Att'y Gen. Op., 96-IB33 (Dec. 11, 1996). The request for names, addresses and social security numbers of employees submitted in sworn payroll information to the DOL is not a "core purpose" of the regulation of state prevailing wage laws that would outweigh the employee's personal privacy interest in Section 10002(d)(1). Therefore, we conclude that a Delaware court facing this issue would uphold the non-disclosure of names, addresses and social security numbers of employees contained in sworn payroll information submitted to the DOL on the basis of the overwhelming persuasive authority in Sheet Metal Workers as well as case decisions in other Federal Circuits and the United States Supreme Court.4 III. APPRENTICESHIP AND TRAINING PROGRAMS The DOL keeps on file apprenticeship agreements with approved contractors that contain the names and addresses of apprentices registered in the Apprenticeship and Training Program. As with prevailing wage requirements, various organizations request these agreements from the DOL under the DFOIA to obtain the names and addresses of registered apprentices for the purpose of ensuring compliance with program regulations. The purpose of the Apprenticeship and Training Program is to encourage the development of a training system to maintain a skilled labor force and specifically to protect and safeguard the welfare of apprentices and trainees. 19 Del. C. § 201. Training and Apprenticeship Programs are subject to approval by the DOL. 19 Del. C. § 204. The DOL is charged with maintaining records of apprenticeship agreements and programs and reviewing such agreements and programs for compliance with the DOL rules and regulations. 19 Del. C § 202. While not specifically addressed in Sheet Metal Workers, the names and addresses of apprentices registered with the DOL Apprenticeship and Training Program are subject to the same significant personal privacy interests as employees listed in sworn payroll reports. Although this is an issue of first impression in Delaware, it is very likely that a reviewing court would weigh the personal privacy interest of apprentices and trainees against the regulatory effect of the request for information in the same manner as sworn payroll information. It is our view that a request for the names and addresses of registered apprentices and trainees is not a regulatory "core purpose" sufficient to outweigh the personal privacy interests of registered apprentices and trainees. Consequently, we predict that the DOL would be permitted to withhold the names and addresses of registered apprentices and trainees. IV. SUMMARY For the reasons explained above, we advise the DOL to discontinue the practice of releasing the names and addresses of employees listed in sworn payroll reports. We further conclude that the DOL is not required to release the names and addresses of apprentices and trainees registered with the Apprenticeship and Training Program. As a result of our legal conclusions on these issues, Attorney General Opinion No. 95-IB03 (Jan. 25, 1995) is rescinded and superseded by this Opinion. If you have further questions, please feel free to contact our office. Thank you for this opportunity to revise our prior Opinion in light of recent changes in the case law. Very truly yours, Lawrence W. Lewis Deputy Attorney General APPROVED: Michael J. Rich State Solicitor xc: The Honorable M. Jane Brady Attorney General Keith R. Brady Chief Deputy Attorney General Chrystyna L. Savitz Opinion Coordinator
1 The sworn payroll information requirement was re-codified from 29 Del. C. § 6912(c) to 29 Del. C. §6960(c) by 70 Del. Laws c. 601, effective September 16, 1996. The purpose of the requirement is to verify that prevailing wages are paid on State public construction projects.
2 The Davis-Bacon Act, 40 U.S.C.A. § 276-a et seq., is a federal measure, similar to 29 Del. C. § 6960(c) which requires the submission of payroll records on federal public construction projects to ensure compliance with federal prevailing wage requirements.
3 See United States Dep't of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749 (1989); United States Dep't of Defense v. Federal Labor Relations Auth., 510 U.S. 487 (1994). See also Painting Indus. of Haw. Market Recovery Fund v. United States Dep't of Air Force, 26 F.3d 1479 (9th Cir. 1994) (Court ruled that the release of a list containing names, addresses and wage information of construction workers would violate significant privacy interests); Painting and Drywall Work Preservation Fund, Inc. v. Department of Hous. and Urban Dev., 936 F.2d 1300 (D.C. Cir. 1991) (HUD supplied payroll records but withheld names, Social Security numbers and home addresses. Court ruled that the possibility of an intrusion upon privacy by releasing this information outweighed any public interest); Hopkins v. United States Dep't of Hous. and Urban Dev., 929 F.2d 81 (2nd Cir. 1991) (HUD deleted all employee names, addresses and Social Security numbers from requested payroll records. Court ruled that had this information been released it would have caused a great intrusion on the employees' privacy). 4 See footnote 3, supra.
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