By Anne Lowe

PUBLIC INFORMATION – The City of Orange has told the State Controller it will not provide W-2 information on its employees unless the state can prove its authority to release the figures.

The Controller’s office has been gathering salary data for employees of cities and counties across California. Orange is one of a handful of these agencies that have refused to provide the data.

As noted by a commentator for the Orange County Register:

The battle over disclosing government worker salaries is very old. Long before there was a public records act, salary information was considered public. As early as 1955, the state Attorney General had to clarify that retiree pay was a public record, just as much as current employees’ pay.

It’s an old battle, but with the rarest of exceptions, the courts rule the same way: Disclose the salaries.

The reason: there are hundreds of exemptions to the California Public Records Act – loopholes, one might call them – but salary records are not among them.

The CPRA states that every “employment contract between a state or local agency and any public official or public employee is a public record which is not subject to [exemption provisions].”

An explanation by the Court of Appeal in a 1983 case is often cited in other cases: “It is difficult to imagine a more critical time for public scrutiny of its governmental decision-making process than when the latter is determining how it shall spend public funds…. including the establishment of salaries.”

In a 2005 case that’s well worth reading for its thorough analysis of the issue, the Court of Appeal addressed an argument similar to Orange’s, whether “financial privacy legislation recently enacted on the federal and state levels supports the right of public employees to keep their salary information private.”

“It does not,” the court answered. ” Nothing in these statutes purports to shield public employee salaries from disclosure. Those salaries are not merely personal finances; they are public expenditures…. [N]either Congress, the California Legislature, nor the Oakland City Council has recognized any social norm making public employee salary data a private matter.”

Now Orange is offering a variation on the theme, that information on W-2s cannot be disclosed.

The controller wants the W-2 information, by the way, because compensation packages have grown so exotic that tax returns are sometimes the only way to tell how much someone made.

As we mentioned earlier, the courts have noted that there isn’t any law that explicitly makes tax returns private. The court that set the precedent (the case was a lawsuit over fire insurance) noted that “[t]his is solely a question of state law. There does not appear to be a privilege for tax returns under federal law.”

That court found that since the Franchise Tax Board is prohibited from releasing returns, there’s an implied right to privacy. One private citizen, for example, has no right to demand another’s tax returns just because they’re involved in a lawsuit.  Courts will issue subpoenas for the records if there’s a good reason.

The courts have named three good reasons: (1) when tax returns are especially relevant, (2) when the case is really important, or (3) when “a public policy greater than that of the confidentiality of tax returns is involved.” That public policy, specifically, would have to be “a legislatively declared public policy.”

So, if there’s an actual law to the contrary, the implied right to confidential tax returns would be outweighed.

We’re no lawyers, but we’d guess the courts will find that the California Public Records Act is, in fact, a law.