73 Op. Att'y Gen. 26 (1984)
 
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OPINION NO. OAG 7-84,

Wisconsin Attorney General Opinions

17 January 1984

CONFIDENTIALITY;
PUBLIC RECORDS;
WORDS AND PHRASES;

Information on sex, ethnic background and
handicapped status obtained through state
employment applications for affirmative
action purposes is exempt from disclosure
under the public records law, but birth
date information is not.

HOWARD FULLER,
Secretary Department of Employment Relations

You have asked a series of questions
regarding access under the public records law
to certain information obtained from state
employes in connection with state affirmative
action programs.

Your first question is:

1.   What state or federal statutory or
     administrative limitations, if any,
     exist upon the right of a requester (as
     defined in Section 19.32(3), Stats.) to
     have access to records in my custody
     which identify the date of birth, sex,
     ethnic status and handicap status of
     individual state employes?

 
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Section 19.36(1) reads as follows:

Limitations upon access and withholding.

19.36(1) APPLICATION OF OTHER LAWS.

Any record which is specifically exempted
from disclosure by state or federal law or
authorized to be exempted from disclosure by
state law is exempt from disclosure under
Section 19.35(1), except that any portion of
hat record which contains public information
is open to  public inspection as provided in
subsection 19.35(6).

Limitation on access to a particular file may
be based on the exemptions to the open
meetings law under section 19.85 if the
custodian can make a specific demonstration
that there is a need to restrict public
access at the time the request is made.

Section 19.35(1)(a), Stats.

The former limitation applies generally to
categories of records. The latter requires a
case-by-case determination at the particular
time the request is made.

The pertinent statutory exemption that
relates to your programs is Section 230.13,
which reads as follows:

230.13 CLOSED RECORDS.
Except as provided in Section 103.13,
the secretary and the administrator
may keep records of the following
personnel matters closed to the public:

(1)  Evaluations of applicants.

(2)  Names of applicants other than
     those certified for employment.

(3)  Dismissals.

(4)  Demotions.

(5)  Disciplinary actions.

(6)  Pay survey data obtained
     from identifiable
     nonpublic employers.

(7)  Names of nonpublic employers
     contributing pay survey data.

This statute does not exempt personnel
information, such as date of birth, sex,
ethnic and handicapped status, provided
on a job application form.

Failure to specifically exempt this category
of information means that it is subject to
the general presumption in favor of
disclosure.

Indeed, under the rule of statutory
construction expressio unius est exclusio
alterius the exemption of certain items
under section 230.13 implies that other
items not mentioned are not exempt.

Teamsters Union Local 695 v. Waukesha County,
57 Wis.2d 62, 67,
203 N.W.2d 707 (1973).

 
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You refer to section 103.13 as possibly
having a bearing on this matter.

It details the rights of an employe to gain
access to his or her own personnel file.

Although there are exceptions prescribed,
it appears an employe will always have a
right to see the part of the file relating
to date of birth, sex and ethnic and
handicapped status.

In my opinion the affirmative establishment
of these employe rights under the employment
regulation provisions of chapter 103 does
not necessarily deprive other persons of
access to the same information pursuant
to the open records law.

Although the statute evinces a legislative
sensitivity to personnel matters, it does not
constitute a specific exemption for the
purpose of section 19.36(1), and thus may not
be used as a basis for blanket denial.

You also refer to section 19.85(1)(c) and
19.85(1)(f), which authorizes exemptions
from the open meetings law for
the following purposes:

19.85(1)(c)

     Considering employment, promotion,
     compensation or performance evaluation
     data of any public employe over which
     the governmental body has jurisdiction
     or exercises responsibility. . . . . .

19.85(1)(f)

     Considering financial, medical, social
     or personal histories or disciplinary
     data of specific persons, preliminary
     consideration of specific personnel
     problems or the investigation of charges
     against specific persons except where
     paragraph 19.85(1)(b) applies which,
     if discussed in public, would be likely
     to have a substantial adverse effect
     upon the reputation of any person
     referred to in such histories or
     data, or involved in such
     problems or investigations.

Once again, these provisions evince a
legislative sensitivity to personnel matters,
but it is clear that they do not constitute
blanket exemptions from the open records law.
Section 19.35(1), states in pertinent part:

     The exemptions to the requirement of a
     governmental body to meet in open
     session under Section 19.85 are
     indicative of public policy, but
     may be used as grounds for denying
     public access to a record only if
     the authority or legal custodian
     under Section 19.33 makes a specific
     demonstration that there is a need to
     restrict public access at the time that
     the request to inspect or copy the
     record is made.

 
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With respect to section 19.85(1)(f), it is
important to note that it is not enough to
be considering some personal information.

It must also be found that the information is
such that if made public it "would be likely
to have a substantial adverse effect" on the
person's reputation. "Reputation" is what
the community thinks about a person.

Although there may be situations where
the release of information regarding one's
age, sex, ethnic background or handicapped
status could satisfy this requirement,
it will be very rare.

Certainly it cannot be presumed
as a general matter.

My conclusion to this point with respect
to your first question is that there is
no state statutory basis for a blanket
exclusion of public records relating
to a public employe's date of birth, sex,
ethnic heritage or handicapped status.

As to federal law, there are express
provisions requiring confidentiality of
handicap information obtained by the state in
connection with job applications. 29 C.F.R.

Section 32.15(a) starts out by prohibiting
the state from even asking about handicap
status, but section 32.15(b) goes on to allow
the state to "invite" such information if it
is made clear that the response is voluntary
and the information will be used solely for
affirmative action purposes.

Furthermore, section 32.15(d) provides:

     Information obtained in accordance with
     this section as to the medical condition
     or history of the applicant shall be
     collected and maintained on separate
     forms that shall be accorded
     confidentiality as medical records,
     except that ...(limited exceptions).

In my opinion this constitutes an exception
to the public records law under section
19.36(1), and handicap information obtained
as described must be kept confidential.

Federal regulations also contemplate some
limitations on access to sex and ethnic
information gathered and kept for the
purpose of affirmative action programs.

29 C.F.R. Section 1607.4B provides:

     Applicable race, sex, and ethnic groups
     for recordkeeping. The records called
     for by this section are to be maintained
     by sex, and the following races and
     ethnic groups: Blacks (Negroes),
     American Indians (including Alaskan
     Natives), Asians (including Pacific
     Islanders), Hispanic (including persons
     of Mexican, Puerto Rican, Cuban, Central
     or South American, or other Spanish
     origin or culture regardless of race),
     whites (Caucasians) other than Hispanic,
     and totals.

 
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     The race, sex, and ethnic
     classifications called for by this
     section are consistent with the Equal
     Employment Opportunity Standard Form
     100, Employer Information Report
     EEO-1 series of reports.

     The user should adopt safeguards to
     insure that the records required by this
     paragraph are used for appropriate
     purposes such as determining adverse
     impact, or (where required) for
     developing and monitoring affirmative
     action programs, and that such records
     are not used improperly.

     See sections 4E and 17(4), below.

Although the statement could be stronger,
it appears the intent of this provision
is to limit the use of sex and ethnic
information for purposes relating
to equal opportunity programs.

In my opinion, it would be reasonable for a
custodian to decide that in order to insure
that the records are not used improperly they
must not be made generally available to the
public under the public records law.

I have found no similar restrictions on
access to age-related information
obtained in connection with the
Age Discrimination Act of 1967.

29 U.S.C. Sections 621-34 and
29 C.F.R. Section 1627.

Therefore, federal law does not provide
a basis for limiting access to such
information under the open records law.

Also, note that birth records kept by state
and local registrars are generally available
to the public. Section 69.23, Stats.

This indicates a legislative determination
that birth date information is not the sort
of sensitive information which might be kept
confidential under the public records law.

Your second question is:

2.   If you determine that no statutory
     limitations exist, what common law
     limitations may exist?

     Does the application of a balancing test
     such as that described in State ex rel.
     Youmans v. Owens, 28 Wis.2d 672, 682,
     137 N.W.2d 470 (1965), result in any
     limitations on public access?

One characteristic of the common law on open
records is that it does have limitations, and
the limitations are embodied in the statement
of the common law balancing test which has
been expressed as follows:

     One must balance the harm to the public
     interest from public examination of the
     records against the benefit to the
     public interest from opening these
     records to examination, giving much
     weight to the beneficial public
     interest in open public records.

State ex rel. Bilder v. Delavan Tp.,
112 Wis.2d 539, 553,
334 N.W.2d 252 (1983).

 
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Appropriately, it is the responsibility of
the custodian to apply the balancing test.

State ex rel. Youmans v. Owens,
28 Wis.2d 672, 682,
137 N.W.2d 470 (1965),
139 N.W.2d 241 (1966).

The custodian is in the best position to
identify and weigh conflicting interests.
Remember, however, that there is a
presumption in favor of access.

I take this to mean that if counterbalancing
interests are about even, the custodian
should decide in favor of disclosure.

From information provided by you it appears
that the major concerns about disclosure of
an employe's birth date, sex, ethnic heritage
and handicapped status is that it is personal
information and could be used in undesirable
ways by a requester.

Specifically, there is a concern that the
information could be used to target
categories of people for unsolicited
communications.

There is also a concern that the information
could be used to focus future discrimination.

You must evaluate these concerns for
yourself, but I can give you some guidance
based on existing legal authorities.

First, it is well established that the
requester's motives are not material.

Section 19.35(i), Stats.;

Youmans, 28 Wis.2d at 677.

Observing this rule, our office has opined
that private entities, including those with
commercial purposes, may have access to birth
records (58 Op. Att'y Gen. 67 (1969)), lists
of students awaiting a particular program in
a Vocational, Technical and Adult Education
District School (61 Op. Att'y Gen. 297
(1972)) and mailing lists compiled by state
agencies (68 Op. Att'y Gen. 231 (1979)), even
though disclosure may result in unsolicited
communications.

As for the fear of using the information for
future discrimination, I can only point out
that our supreme court was not receptive to
such a generalized assertion in

Newspapers, Inc. v. Breier,
89 Wis.2d 417, 421, 432,
279 N.W.2d 179 (1979).

You must evaluate this fear based on your
expertise but it is my opinion that the
mere fear that some information might
be used in a discriminatory way at some time
is not sufficient to generally decline access
to all the information all the time.


 
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Your third question has two parts:

3-A  What effect does the pre-existing pledge
     of confidentiality given by the
     University to its employes, limiting use
     to "statistical and reporting purposes
     only," have on the limitations, if any,
     described in your answers to questions
     #1 and #2, and further on my subsequent
     re-release of such information? . . . .

3-B  Does the language used on the current
     state service application form (Rev.
     4/83), quoted above, also constitute a
     pledge of confidentiality?

     This question arises because, if the
     information is made available to the
     public at large, it would not be
     possible to guarantee compliance with
     the statement that the information will
     be used for affirmative action and will
     not be used for discrimination.

Along with your questions you refer to a
September 13, 1977, unpublished attorney
general's opinion.

It involved a request to the University to
provide the names and addresses of all
nonwhite University employes.

The University resisted on the ground that
ethnic heritage information had been
solicited from and disclosed by employe
candidates based on the understanding that it
would be kept confidential and used only for
statistical and reporting purposes in
connection with the affirmative
action program.

I will quote from the opinion at
length since it was not published.

     An earlier] . . . opinion of the
     Attorney General goes on to list the
     three criteria which are considered
     in determining whether a particular
     pledge of confidentiality comes
     within the exception to the
     public right of full access.

     First,    there must be a clear pledge
               of confidentiality.

     Second,   the pledge should be made in
               order to obtain the
               information.

     Third,    the pledge must be necessary
               to obtain the information.

     If the pledge fulfills these criteria,
     then the custodian, before he can
     withhold records, must make the further
     determination that the harm to the
     public interest that would result from
     permitting inspection outweighs the
     public interest in allowing full
     access to the records.

     From the information made available, it
     appears that the University has made a
     clear pledge of confidentiality to the
     minority persons, that the pledge was
     made in order to obtain the information,
     and that the pledge was necessary to
     obtain the information.

     The fact that only 40 of 1,000 minority
     employes on the Madison campus were
     agreeable to be identified by name
     and address seems to confirm the
     assertion that the University would not
     be able to perform its statistical
     reporting responsibilities to the
     federal government without the pledge of
     confidentiality.


 
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     The remaining question, then, is whether
     the University's interest in maintaining
     confidentiality outweighs Senator Swan's
     apparent interest in making the names
     available to his committee and the
     public.

     This brings us to your responsibility,
     as the custodian of the records, to
     weigh the relative public interests
     involved, that is, the interests of
     the University in maintaining the
     confidentiality of the names and
     addresses as against Senator Swan's
     responsibility as chairman of the Senate
     Committee on Governmental and Veterans
     Affairs.

     As the record presently stands, we know
     two things in regard to the needs of
     Senator Swan's committee.

     First, that they intend to do a study on
     the state's affirmative action program
     and desire the names and addresses of
     all minorities employed by the
     University System.

     Secondly, we know that Senator Swan's
     committee has denied his request that
     a subpoena be issued to the University
     for the records containing the names
     and addresses in question.

     In view of this fact and in the absence
     of any further specifics as to why the
     names and addresses of the minority
     employes are needed for the study, as
     opposed to the statistical information
     offered, it is my opinion that a court
     would support the determination of the
     University that the public interest in
     nondisclosure outweighs any public
     interest in disclosure.

     Accordingly, I am of the opinion that
     under the present state of the record,
     you are not under an obligation to
     disclose to Senator Swan the ethnic
     heritage of specific employes by name
     and address where this information was
     received from the employe under a pledge
     of confidentiality.

     In response to your questions, I see no
     reason to change this earlier opinion.
     If the confidential information is
     provided to you by the University it is
     the University's obligation to preserve
     the confidentiality by binding you to a
     similar pledge which you must honor.

     As stated in

     57 Op. Att'y Gen. 187, 191 (1968):

     The law seems clear that information of
     a confidential nature gained by one
     administrative branch of the government
     from another may be used in preparation
     for proper internal matters, but should
     not be disclosed to the public.


 
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In the second part of your third question
you ask whether the following language
in the state employment application
form constitutes a legally cognizable
pledge of confidentiality:

     Date of Birth, Sex, Ethnic and
     Handicapped Status Information is
     for affirmative action purposes.

     It will not be used to discriminate
     against any applicant."

In contrast, the language used by the
University and the subject of the September
13, 1977, unpublished opinion, was as
follows: "Heritage Code information requested
only if and after a person is employed and
will be used only for statistical and
reporting purposes, including required
reports to the federal government."

While I advised that the University language
is a sufficiently clear pledge to satisfy the
criteria set forth in earlier opinions, I
cannot say the same about the language in the
state application form. There is no express
statement that the information will be used
solely for affirmative action purposes thus
necessarily implying that it will be
otherwise confidential.

Indeed, I doubt that a prospective employer
could honor such a pledge with respect to
"date of birth and sex" information.

Your fourth question is:

4.   What, if any limitations on access
     to this information apply to:

4a.  Myself, as Secretary of DER, when
     requesting said information from the
     agencies in regard to their employes;

4b.  Other state agencies when requesting
     said information from DER which is not
     specific to employes of their own
     agency; or

4c.  A representative of the Governor, when
     requesting such information on state
     employees from DER?

Given your responsibilities regarding
development and evaluation of affirmative
action programs, it is my opinion you have
access to whatever information you need to
carry out those responsibilities.
 

Section 230.04(9) and (10), Stats.


 
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Access by other state agencies and the
Governor's office to person specific handicap
information obtained in connection with a job
application appears to be limited by

29 C.F.R. Section 32.15(d),
which reads as follows:

     Information obtained in accordance with
     this section as to the medical condition
     or history of the applicant shall be
     collected and maintained on separate
     forms that shall be accorded
     confidentiality as medical records,
     except that:

     (1)  Employing officials may obtain the
          information after making a
          conditional decision to make a
          job offer to the applicant or the
          applicant was placed conditionally
          in a job pool or placed
          conditionally on an
          eligibility list.

     (2)  Supervisors and managers may be
          informed regarding restrictions on
          the work or duties of qualified
          handicapped persons and regarding
          necessary accommodations;

     (3)  First aid and safety personnel may
          be informed, where appropriate, if
          the condition might require
          emergency treatment; and

     (4)  Government officials investigating
          compliance with the Act shall be
          provided information upon request.

Access to sex and ethnic origin information
should be restricted to the extent it is
necessary to ensure the

      "records are not used improperly."

29 C.F.R. Section 1607.4B.

Your fifth question is:
 

5.   What limitations, if any, exist on DER's
     or any other state agencies' ability to
     establish, when requesting said
     information, a pledge of confidentiality
     which may be successfully enforced?

     I refer you here to Attachments F and G
     which outline the University's position
     that, particularly since there is no
     state law requiring employes or
     applicants to provide this information,
     such a pledge is necessary to ensure the
     provision of accurate information for
     purposes of affirmative action and
     nondiscrimination reporting.

The essential elements for an enforceable
pledge of confidentiality are set forth in my
answer to your third question.

In short, if a clear pledge of
confidentiality is made in exchange for
information, if the information could not be
obtained but for the pledge and if public
interest in maintaining confidentiality
outweighs the public interest in access to
the information, the pledge would effectively
exclude the information from disclosure under
the open records law.


 
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BCL:RWL