Are prevailing-wage payroll records that contractors file with Delaware's Department of Labor public records?

Official title

95-IB03 Sworn Payroll Information 29 Del. C. ' 10002

Plain-English summary

Delaware's Secretary of Labor asked the AG which parts of the weekly sworn payroll reports that public-project contractors are required to file, covering employee names, addresses, Social Security numbers, job classifications, hours, pay rates, and benefits, had to be released under FOIA. The AG concluded that these filings met FOIA's broad definition of a public record and found no statute or common-law privilege shielding them generally. But one specific exemption applied: FOIA protects personnel records whose disclosure would be an invasion of personal privacy, and after surveying federal case law interpreting a nearly identical exemption under the federal Davis-Bacon Act (which governs prevailing wages on federal construction projects), the AG concluded that while employees' names, addresses, and wage details serve the public's strong interest in enforcing prevailing wage laws and must be disclosed, Social Security numbers carry a separately recognized privacy interest with no corresponding enforcement need, so those numbers had to be redacted before the records were released.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Can the public see how much contractors on a Delaware public construction project pay their workers?
A: Yes, according to this opinion. Names, addresses, job classifications, hours, pay rates, and benefit information in sworn payroll filings were found to be public records under FOIA.

Q: Does that mean a contractor's employees' Social Security numbers are also public?
A: No, per this opinion. The AG found Social Security numbers carry a distinct, recognized privacy interest that outweighs the public interest in disclosure, so they must be redacted before payroll records are released.

Q: Why would Social Security numbers be treated differently from other payroll details in the same document?
A: According to this opinion, the balancing test used in similar federal cases found real public value in disclosing wage and identity information to enforce prevailing wage laws, but no similar enforcement need for Social Security numbers specifically.

Background and statutory framework

The request concerned which portions of prevailing-wage sworn payroll reports filed with the Department of Labor under 29 Del. C. § 6912(c) were subject to public disclosure. Applying FOIA's declaration of policy at 29 Del. C. § 10001, the definition of "public record" at § 10002(d), the public inspection requirement at § 10003(a), the exemption for records shielded by other statute or common law at § 10002(d)(6), and the personnel-file privacy exemption at § 10002(d)(1), and drawing on Delaware's recognition of that exemption's privacy purpose (Del. Solid Waste Authority v. News-Journal), a comparable state-law standard for what invades personal privacy (Perkins v. Freedom of Information Comm'n), prior guidance to consult federal law where Delaware's statute is silent (Attorney General Opinion No. 80-I023), and federal case law balancing disclosure against privacy in prevailing-wage payroll records (Hopkins v. United States Department of Housing and Urban Development; I.B.E.W. Local U. No. 5 v. U.S. Dept. of HUD; Painting Ind. of Hawaii v. U.S. Dep. of Air Force), the AG found the payroll records generally public but ordered Social Security numbers redacted.

Citations and references

Statutes:

• 29 Del. C. § 6912(c), requires public construction contractors to submit weekly sworn payroll information to the Department of Labor
• 29 Del. C. § 10001, FOIA's declaration of policy favoring citizen access to public records
• 29 Del. C. § 10002(d), defines "public record" broadly to include information relating to public business
• 29 Del. C. § 10003(a), public records must be open to inspection and copying by any citizen of the State
• 29 Del. C. § 10002(d)(6), exempts records specifically shielded from disclosure by other statute or common law
• 29 Del. C. § 10002(d)(1), exempts personnel, medical, or pupil files whose disclosure would invade personal privacy

Cases:

• Del. Solid Waste Authority v. News-Journal, Del. Supr., 480 A.2d 628 (1984), the personal privacy exemption exists to protect individuals from invasive disclosure
• Perkins v. Freedom of Information Comm'n, Conn. Supr., 635 A.2d 783 (1993), disclosure is barred when information would be highly offensive to a reasonable person and not of legitimate public concern
• Attorney General Opinion No. 80-I023 (July 9, 1980), federal law may guide interpretation when Delaware's prevailing wage law is silent
• Hopkins v. United States Department of Housing and Urban Development, 929 F.2d 81 (2d Cir. 1991), the public interest in enforcing prevailing wage laws outweighed employees' privacy interest in names, addresses, and wage information
• I.B.E.W. Local U. No. 5 v. U.S. Dept. of HUD, 852 F.2d 87 (3rd Cir. 1988), employees have a strong privacy interest in Social Security numbers that outweighs public disclosure interests
• Painting Ind. of Hawaii v. U.S. Dep. of Air Force, 756 F.Supp. 452 (Hawaii 1990), disclosure of Social Security numbers is an unwarranted privacy invasion absent evidence they are necessary to enforce prevailing wage laws

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/01/25/95-ib03-sworn-payroll-information-29-del-c-10002/
• Original PDF: not linked from landing page

Original opinion text

January 25, 1995

Del. Op. Atty. Gen. 95-IB03 (Del.A.G.), 1995 WL 794533

( determining that sworn payroll records filed with the Department of Labor are “public records”; provided that social security numbers must be redacted prior to inspection to protect personal privacy rights )

The Honorable Darrell J. Minott

Department of Labor

Carvel State Office Building

820 N. French Street, 6th floor

Wilmington, DE 19801

RE: Sworn Payroll Information 29 Del. C. § 10002

Dear Secretary Minott:

You have asked which portions of the payroll reports required under 29 Del. C. § 6912(c) are subject to public inspection and copying under the Delaware Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”). For the reasons which follow, we conclude that the documents required under § 6912(c) to be filed with the Department of Labor by state agencies are public records with the exception of employee Social Security numbers. Twenty-nine Del. C. § 6912(c) specifically provides that each public construction project contract shall contain a stipulation that the sworn payroll information shall be submitted weekly to the Department of Labor. The information required by the Department of Labor includes the name, address and Social Security number of each employee working on the public project, the employee’s work classification, total hours worked, rate of pay, gross amount earned, payroll deductions, types of fringe benefits provided and the cost of those fringe benefits.

As you are aware, § 6912(c) is a recent amendment to the prevailing wage law, and, accordingly, the question concerning which portions of the sworn payroll information are available for public inspection is a question of first impression. The purpose of 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. 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).

There are statutory exemptions to public disclosure under FOIA which may appear to be applicable to the sworn payroll information. Twenty-nine Del. C. § 10002(d)(6) provides that “[a]ny records specifically exempted from public disclosure by statute or common law” are not subject to disclosure under FOIA. Id. However, this office is not aware of any statutory or common law privilege which may exempt the sworn payroll information from public disclosure. Under 29 Del. C. § 10002(d)(1), public records do not include:

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.

The purpose of this exemption is to protect personal privacy. Del. Solid Waste Authority v. News-Journal, Del. Supr., 480 A.2d 628, 631 (1984). Interpreting the personal privacy exemption in a statute similar to the Delaware FOIA, the Connecticut Supreme Court ruled that the test for public disclosure is whether the information sought is “highly offensive to the ordinary reasonable person” and whether the information is truly “not of legitimate concern to the public.” Perkins v. Freedom of Information Comm’n, Conn. Supr., 635 A.2d 783, 790 (1993)(citing Restatement (Second) of Torts § 652D).

When the Delaware prevailing wage law is silent on an issue, it is appropriate to consult federal law interpreting its purposes and policy. Attorney General Opinion No. 80-I023 (July 9, 1980). The Davis-Bacon Act, 40 U.S.C. § 276(a), requires that laborers and mechanics be paid prevailing wages on federal construction projects. Each contractor and subcontractor on a federal construction project is required under the Davis-Bacon Act to submit a weekly statement regarding wages paid to each employee to the United States Secretary of Labor. 40 U.S.C. § 276(c). In Hopkins v. United States Department of Housing and Urban Development, 929 F.2d 81 (2d Cir. 1991), a union working on government construction projects requested copies of records prepared by HUD used to enforce the prevailing wage provisions of the Davis-Bacon Act. The court employed a balancing test and considered the privacy interest of the individuals versus the public interest in enforcing the prevailing wage laws and concluded that the enforcement of the prevailing wage laws outweighed the employees’ privacy interest in restricting the dissemination of their names, addresses and other wage information. The union made its

document request under the Federal Freedom of Information Act, 5 U.S.C. § 552, which mirrors the Delaware Freedom of Information Act with regard to exemption from the disclosure of personnel files.

The Third Circuit has also addressed this issue in I.B.E.W. Local U. No. 5 v. U.S. Dept. of HUD, 852 F.2d 87(3rd Cir. 1988). In this case, the union requested, under the Federal Freedom of Information Act, the names, addresses and Social Security numbers of non-union employees working for a federal contractor. The court also utilized a balancing approach and found that the public interest in disclosing employees’ names and addresses clearly outweighed any privacy interest. However, the Court ruled that a privacy interest in Social Security numbers outweighed the public interest in disclosure. The court stated as follows:

The employees have a strong privacy interest in their Social Security numbers. Congress has recognized this privacy interest by making unlawful any denial of a right, benefit, or privilege by a government agency because of an individual’s refusal to disclose his Social Security number. Privacy Act of 1974, Pub.L. 93-579, § 7, 88 Stat. 1896, 1909 (1974), reprinted in 5 U.S.C. § 552a note (1982). Moreover, in its report supporting the adoption of this provision, the Senate Committee stated that the extensive use of Social Security numbers as universal identifiers in both the public and private sectors is ‘one of most serious manifestations of privacy concerns in the Nation.’ S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 6916, 6943.

Id. at 89. While the disclosure of contractor payroll records serves a significant public interest in ensuring compliance with the Davis-Bacon Act, a disclosure of employees’ Social Security numbers constitutes a significant privacy concern and an unwarranted invasion of personal privacy in the absence of any evidence that the Social Security numbers are necessary to accomplish the objectives of the prevailing wage laws. Painting Ind. of Hawaii v. U.S. Dep. of Air Force, 756 F.Supp. 452 (Hawaii 1990).

Based on the federal case law and privacy concerns inherent in the exemption of personnel records from public records contained in 29 Del. C. § 10002(d)(1), we conclude that it is necessary to redact the Social Security numbers of the employees in providing responses to

document requests pursuant to the Delaware FOIA for sworn payroll information under 29 Del. C. § 6912(c). If you have any questions, please do not hesitate to contact our office.

Sincerely,

Lawrence W. Lewis

Deputy Attorney General

John K. Welch

Deputy Attorney General

APPROVED:

Michael F. Foster

State Solicitor

cc:

M. Jane Brady

Attorney General

Keith R. Brady

Chief Deputy Attorney General