Court of Appeal Rules:
Public Employees Have Privacy Interest in Salary Information
By DAVID WATSON, Staff Writer
Public employees have an interest in keeping their salaries secret, partly because disclosing them could lead to identity theft, the First District Court of Appeal has ruled.
Div. One on Friday upheld a preliminary injunction issued by San Mateo Superior Court Judge Rosemary Pfeiffer in litigation involving several Bay Area newspapers and municipalities and unions representing the municipal employees. Pfeiffer ordered the cities to release position titles and salary amounts requested by the newspapers, but not the names of individual employees.
Christina Bellantoni, a reporter for the Daily News, which operates several Bay Area newspapers, sent requests under the California Public Records Act to the cities in February. Bellantoni asked for a list of “names, titles and W2 wages” for all city employees for 2002.
Teamsters Local 856 and other unions representing the workers sought injunctive relief, claiming release of the information would invade the employees’ privacy.
Writing for the appellate court, Presiding Justice James J. Marchiano said Pfeiffer’s order properly balanced the competing interests at the pretrial stage of the litigation.
“In this case, the court accepted a stipulation that employees’ salary details are kept confidential in personnel files,” Marchiano wrote. “This unchallenged fact supports the trial court’s recognition that a privacy interest was at stake and that the expectation of privacy was reasonable under the circumstances.”
The presiding justice said the privacy claims advanced by the unions needed to be “carefully analyzed” since “disclosure of the financial information sought by the Daily News in this case means the information is public and available to anyone, regardless of motive, including telemarketers, creditors and identity thieves.”
He noted that most of the cases the newspapers relied on, including Braun v. City of Taft (1984) 154 Cal.App.3d 332, were decided “before the spread of identity theft, and the current widespread and serious concern for the privacy of an individual’s financial data.”
In Braun, the court upheld a determination that a city administrator’s salary classification was public record, and commented: “Few persons would find interest in [the administrator’s] social security and credit union numbers, or birth date.”
The presiding justice, saying the +Braun+ court’s comment had been “inexplicably” included in its opinion, observed:
“Identity thieves today would have a great deal of interest in an individual’s social security number and other identifying financial data.”
Marchiano conceded that the newspapers had outlined circumstances under which the salary information could be used to explore issues of public concern, but explained that those “speculative possibilities” did not establish a “relationship between indiscriminate, mass disclosure of all employee names with salaries and the public’s right to know how public funds are spent.”
“The name of a particular city employee does not tend to shed light on the city’s performance of its duties. The release of salaries, broken down by position, title, base salary, overtime and bonus compensation serves the public purposes that appellants urge at this stage of the proceedings. Appellants are not precluded from presenting additional evidence of why the names of employees are needed for their purposes.”
Marchiano said any release of information regarding police officers would also have to comply with the provisions of Penal Code Sec. 832.7, which limits disclosure of information from peace officer personnel files. Notice to the officers and a “Pitchess” hearing under Evidence Code Secs. 1043 and 1046 would have to take place before that information could be released, the justice said.
The jurist noted that the court was only upholding Pfeiffer’s ruling on the unions’ request for interim relief, not making a determination regarding the ultimate outcome of the litigation.
“We are not now deciding the merits of the question of whether the Cities must release salary information in a form that identifies the salaries paid to specific individual employees,” Marchiano wrote. “Resolution of that issue involves a balancing test that will benefit from a complete presentation of evidence and argument.”
Justices William D. Stein and Sandra L. Margulies concurred.
Thomas R. Burke of Davis Wright Tremaine, who co-authored an amicus brief on behalf of the California Newspaper Publishers Association and other media groups, predicted that a “substantial number of compelling reasons” for making the salary information public will be established when the case goes to trial.
“I don’t think it’s over with yet,” the attorney said, adding that he believes the appellate court gave “a lot more credit than they needed to to the idea of identity theft.”
Burke also questioned the standing of the employee unions to contest the release of the information, pointing to a footnote in which Marchiano conceded that under Filarsky v. Superior Court (2002) 28 Cal.4th 419 there is “no express authority for a third party to bring an action to preclude a public agency from disclosing documents under the CPRA.”
The footnote explains that the newspapers waived any objection on that basis, adding that the appellate panel was expressing “no opinion on the propriety of the third party action.”
Burke called that comment a “signal” to media litigants that the standing issue probably should have been raised.
“The union basically did an end run around the public records act,” he declared.
The case is Teamsters Local 856 v. Priceless, LLC, 03 S.O.S. 5662.
Copyright 2003, Metropolitan News Company