77 Op. Att'y Gen. 20 (1988)
 
77 OAG 20  21  22  23  24

OPINION NO. OAG 4-88,

Wisconsin Attorney General Opinions

10 February 1988

Public Records;
Savings And Loan Associations,

Salary information submitted to the state
commission of savings and loan in connection
with an absorption application is not exempt
from disclosure under the state public
records law.

LEO MORTENSEN,
Commissioner Savings and Loan Review Board

You ask whether officer and director salary
information submitted to the commissioner of
savings and loan in an absorption application
is exempt from disclosure under the public
records law.

You advise that the absorption of one savings
and loan association by another must be
approved by the commissioner of savings and
loan (state commissioner) under Sections
215.53 and 215.73, Stats., and by the federal
home loan bank board federal board).

If it involves a capital stock association it
must be approved by the federal securities
and exchange commission.

Absorption applications filed with the
federal regulators are required to contain
salary information about all officers and
directors involved.

You advise that state law does not specify
required information, but it has been the
long-standing practice of your agency to
allow associations to submit copies of the
same applications submitted to the federal
regulators.

Independent of federal requirements you would
require submittal of salary information about
the association to be absorbed in order to
review compliance with section S-L 9.035 of
the Wisconsin Administrative Code.

It provides that as a condition precedent to
approval of an absorption under section
215.53 or 215.73, it must be determined by
the commissioner that compensation to
officers, directors and employes of the
absorbed association is not excessive.

Your question requires an interpretation of
Section 19.36(1), which reads as follows:

APPLICATION OF OTHER LAWS.

19.36(1)

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 that record which
contains public information is open
to public inspection as provided in
Subsection 19.36(6).

 
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You direct my attention to 12 C.F.R.
Section 505.5 (1987) which contains the
federal board's regulations on information
that is exempt from disclosure under
the federal Freedom of Information Act
5 U.S.C. Section 552 (1977).

The pertinent parts read as follows:

5 U.S.C. Section 552 (1977)(a)

General rule.

Except as otherwise provided in
this Part or as may be specifically
authorized by the Board,
information of the Board that has
not been published in accordance
with Section 505.3 and is not
available to the public through
other sources will not be made
available to the public or
otherwise disclosed if such
information is . . . . . . .
 

(3)  Privileged or related to the
     business, personal, or financial
     affairs of any person and is
     furnished in confidence;. . .

(6)  Contained in personnel, medical,
     and similar files (including
     financial files), the disclosure
     of which would constitute a clearly
     unwarranted invasion of personal
     privacy; or . . . . . . . . . .
 

5 U.S.C. Section 552 (1977)(b)

Information available to insured institutions
and to State and Federal agencies.

A copy of each report of the regular
examination of each insured institution or
affiliate is made available by the Board's
Supervisory Agent at the appropriate
Federal Home Loan Bank to the institution
examined.

Reports of examination and other information
relating to State-chartered insured
institutions and affiliates are made
available, upon request, by the Director of
the Board's Office of Examinations and
Supervision to the State governmental
authority having general supervision of such
State-chartered insured institutions.

Reports of examination and other information
may be made available by the Board to other
agencies of the United States or a State for
use where necessary in the performance of
their official duties.

All reports or other information made
available pursuant to this paragraph shall
remain the property of the Board and, except
as otherwise provided in this Part, no
person, agency, or authority to whom the
information is made available or any officer,
director, or employee thereof, shall disclose
any such information except in published
statistical material that would not disclose
the affairs of any individual or corporation.

 
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5 U.S.C. Section 552 (1977)(c)

Prohibition against disclosure.

Except as authorized by this Part or
otherwise by the Board, no officer, employee,
or agent of the Board or of any Federal Home
Loan Bank shall disclose or permit the
disclosure of any unpublished information of
the Board to anyone (other than an officer,
employee, or agent of the Board or of a
Federal Home Loan Bank properly entitled to
such information for the performance of his
official duties), whether by giving out or
furnishing such information or a copy thereof
or by allowing any person to inspect,
examine, or copy such information or copy
thereof, or otherwise.

Notwithstanding the foregoing, unpublished
economic, statistical or similar information
or unpublished information regarding
interpretations by the Board of statutory or
regulatory provisions may be disclosed,
orally or in writing, by any officer,
employee, or agent of the Board or of any
Federal Home Loan Bank, acting in his
capacity as agent of the Board, subject,
however, to the restrictions stated in
Section 505.5 of this Part.

You state that the federal board has
construed the provisions of section
505.5(a)(3) and (6) to preclude the
disclosure of salary information
contained in absorption applications
received by the board.

The question is whether the federal exemption
is incorporated in our state public records
law by virtue of section 19.36(1).

With one qualification, I think it is not.

In my opinion section 19.36(1) is intended to
incorporate federal law that specifically
requires a state governmental entity to keep
a particular type of record confidential.

Normally such federal confidentiality
provision will exist in the context of a
federal program or regulatory scheme under
which the state governmental entity is
required to or has agreed to perform certain
responsibilities.

Examples include handicap status, sex and
ethnic information obtained by the state as
part of its affirmative action program.

This was discussed in

73 Op. Att'y Gen. 26, 29-30 (1984).

Another example is the federal requirement
that states participating in the AFDC program
must keep confidential information concerning
applicants and recipients.

42 U.S.C. Section 602 (a)(9) (1983);

45 C.F.R. Section 205.50(a)(1) (1986);

State ex rel. Dombrowski v. Moser,
113 Wis.2d 296, 299,
334 N.W.2d 878 (1983).

 
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The provisions of 12 C.F.R. Section 505.5(a)
do not purport to apply to any state agency
or program.

They apply to information received
by the federal board.

A major distinguishing factor is that the
state's regulation of savings and loan
associations is not pursuant to or dependent
upon or in concert with any overarching
federal program or regulatory scheme.

The state's regulatory authority in this
area is independent and coordinate.

Therefore, there would be a question whether
the federal board would even have the legal
authority to impose the restrictions of
12 C.F.R. Section 505.5 on state regulators.

The one qualification comes from
12 C.F.R. Section 505.5(b).

It provides that if a state regulator
receives confidential information from the
federal board, it must honor the
confidentiality of the information.

This is necessary and appropriate to ensure
that the federal board is preserving its own
policies, but it does not extend
confidentiality to similar information which
is received directly from an association by
the state regulators in accordance with state
policies.

You note that section S-L 1.15(3)(a)5. of the
Wisconsin Administrative Code might be used
to exempt disclosure of the salary
information.

It exempts

    "information which in the opinion of the
     legal custodian invades personal privacy
     to such an extent as to outweigh the
     public interest in disclosure."

However, you believe this administrative rule
which was adopted in 1976 has been superseded
by the codification of public records law in
sections 19.31 to 19.39, created by chapter
335, Laws of 1981.

I would agree that a state agency may not
adopt an administrative rule that is
inconsistent with or departs from
the statutory public records law,
unless the state agency is
given express authority to do so.

It may be that section S-L 1.15(3)(a)5. of
the Wisconsin Administrative Code could
survive a challenge because its formulation
could be construed to be compatible with the
common law balancing test which is carried
over in the new law and which would possibly
be applied to keep the subject salary
information confidential.

However, such a determination must
be made on a case-by-case basis.

Sections 19.31 and 19.35(1)(a), Stats.

DJH:RWL

 
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