VIRGINIA FREEDOM OF INFORMATION ACT. PERSONNEL RECORDS. PAYROLL RECORDS HELD PUBLIC BODY TO COMPLY WITH FEDERAL LAW CONSIDERED PERSONNEL RECORDS EXCEPTED ROM MANDATORY DISCLOSURE REQUIREMENT.

February 8, 1986

The Honorable Robert C. Scott
Member, Senate of Virginia

85-86 333

You ask whether the Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"), requires the disclosure of certain records collected and held by the Newport News Office of Human Affairs ("OHA"). The documents in question are certified weekly payroll reports and copies of employee labor standards interviews relating to two construction projects sponsored by the Newport News Redevelopment and Housing Authority (the "Authority") and funded, at least in part, by the United States Department of Housing and Urban Development ("HUD").

I. Federal Regulations

HUD-financed projects are subject to federal regulation under the Davis-Bacon Act, 40 U.S.C. §§276(a) to (a)(7); 40 U.S.C. §276(c). The payroll reports are required to be collected pursuant to 29 C.F.R. §5.5(a)(3) (1985). Labor standards interviews are provided for under 29 C.F.R. §5.6(a)(3) and are made confidential by 29 C.F.R. §5.6(a)(5). The Authority has contracted with OHA to administer and monitor contractor compliance with these federal regulations for the two projects and, accordingly, OHA is in possession of the requested records.

You advise that the same records were requested from HUD under the federal Freedom of Information Act, 5 U.S.C. §552. HUD refused to supply the records because the projects are administered by the Authority and, therefore, the records were not in HUD's possession. HUD also refused to instruct the Authority to release the records because (1) release of the payroll records with personal identifiers would constitute a substantial invasion of the workers' personal privacy, and (2) labor standards interviews are confidential under 29 C.F.R. 5.

II. State Statute

OHA, as a governmental agency of the City of Newport News, is a "public body" under §2.1-341(a) and is subject to the mandatory disclosure requirement of 2.1-342(a). The requested documents are "official records" under §2.1-341(a) and would be subject to mandatory disclosure unless specifically excepted by law. Section 2.1-342(b)(3) provides, however, that personnel records are excepted from the mandatory disclosure requirement.

III. Prior Opinions

Prior Opinions of this Office interpreting §2.1-342(b)(3) have held that to be excepted personnel records must contain information concerning identifiable individuals. See Reports of the Attorney General: 1983-1984 at 449; 1981-1982 at 433; 1979-1980 at 383. Records entitled to the personnel record exception have included information concerning employee evaluation,¹ specifics as to the nature of employment,² professional qualifications,³ and job applications.⁴

IV. Personnel Record Exception Applied to Records in Possession of a Public Body

The personnel record exception includes records that are in the nature of personnel records concerning persons who are not employees of the public body if such records are in the possession of the public body. See 1981-1982 Report of the Attorney General, supra. Accordingly, it is my opinion that the payroll reports in question here are personnel records excepted from mandatory disclosure by §2.1- 342(b)(3), because such reports contain information of the type normally found in personnel records specifically related to the wages, hours and professional qualifications of identifiable employees of building contractors.⁵

V. Labor Standards Interviews

Labor standards interviews do not contain the type of information found in personnel records and, therefore, are not within the personnel records exception. Labor standards interviews are an enforcement mechanism to ensure contractors' compliance with federally mandated labor standards. These interviews, however, are made confidential under 29 C.F.R. §5.6(a)(5). The question, therefore, is whether records subject to mandatory disclosure under §2.1-342(a), but confidential under a federal regulation, may be disclosed.

VI. Supremacy Clause

A federal law or regulation will supplant a state law under the Supremacy Clause of the U.S. Const. Art. VI if the state law conflicts with the federal law or policy.⁶ In this instance, the labor standards interviews are subject to mandatory disclosure under §2.1-342(a) and confidential under a federal regulation. Thus, §2.1-342(a) irreconcilably conflicts with federal policy as expressed in the federal regulation. The precedence of a federal regulation over a state law will not be assumed absent a clear expression of congressional intent to preempt the field covered by the federal regulation. See Brookbank, Inc. v. Hubbard, 712 F.2d 399 (9th Cir. 1983); 1985-1986 Report of the Attorney General at 246. In determining whether a federal regulation will supplant a conflicting state law, federal courts have considered the extent of federal statutes or regulations covering the area,⁷ whether the state law is an obstacle to accomplishing the federal objective,⁸ and whether uniformity among all the states in the area of regulation is intended or is necessary.⁹

VII. Conclusion

The Davis-Bacon Act and the federal regulations promulgated under it constitute a comprehensive scheme of wage and labor standards applicable to federally funded building projects. Federal regulations specify how labor standards interviews are to be collected and in what circumstances they may be disseminated. The Secretary of Labor has determined that the effectiveness of labor standards interviews, as an enforcement mechanism, requires that interviews be confidential. With HUD projects in every state, the confidentiality requirements must be uniform if the federal purpose is to be accomplished. In accord with the factords set out above, it is my opinion that the specific federal regulation providing for the confidentiality of labor standards interviews supplants the general mandatory disclosure requirement of § 2.1-342(a). OHA need not, therefore, disclose the requested records of labor standards interviews.¹⁰

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Footnotes:

1. See 1974-75 Report of the Attorney General at 580.

2. See 1977-1978 Report of the Attorney General at 310.

3. See 1979-1980 Report of the Attorney General at 301.

4. See 1981-1982 Report of the Attorney General, supra.

5. I note that the provisions of §2.1-342(c), relating to the disclosure of salary and other information, would not be applicable to the payroll reports because the employees in question are not public officers or employees.

6. See Second Employers' Liability Cases, 223 U.S. 1 (1911).

7. See First Fed. S. & L, Boston v. Greenwald, 591 F.2d 417 (1st Cir. 1979); 1977-1978 Report of the Attorney General at 313.

8. See Metropolitan Life Ins. Co. v. McShan, 577 F. Supp. 165 (N.D. Cal. 983).

9. See United States v. Shimer, 367 U.S. 374 (1961); United States v. Nixon, 395 F. Supp. 395 (E.D. Mich. 1975).

10. I am aware of the prior Opinion of this Office, found in the 1979-1980 Report of the Attorney General at 236, holding that Medicaid cost reports are subject to mandatory disclosure. I distinguish the holding in this Opinion from that of the prior Opinion on the basis of the existence of a specific regulation requiring confidentiality, thereby triggering the application of the Supremacy Clause doctrine.