May 6, 1980

Dr. Joseph Simmons 
South Dakota Cement Plant Commission 
3603 Scenic 
Rapid City, South Dakota 57701

Official Opinion No. 80-32

Salary Schedules of Employees of the South Dakota Cement Plant

Dear Dr. Simmons:

You have requested an official opinion from this office in regard to the following factual situation.

FACT: 

Mr. Scanlon has indicated that he has received numerous requests for staff schedules, job descriptions, and salary tables of administrative personnel at the State Cement Plant.  The question has thus arisen as to the propriety of the disclosure of these salary schedules and related information.  Is there at this point a conflict between the right of privacy of the staff at the State Cement Plant and the right of the public to have access to this information?

Based on the above facts you have asked the following question:

QUESTION: 

Does the public have access to salary schedules, staff schedules, and job descriptions of personnel at the State Cement Plant?

While the United States Constitution does not explicitly mention any right of privacy, the Supreme Court of the United States has repeatedly held that the right of privacy is a basic right guaranteed by the United States Constitution.  Griswold v. Connecticut, 381 U.S. 479, 14 L.Ed.2d 510, 85 S.Ct. 1678.  This constitutionally protected right of privacy emanates from the totality of the constitutional scheme under which we live.  Poe v. Ullman,  367 U.S. 497, 6 L.Ed.2d 989, 81 S.Ct. 1752.  The right of privacy is based in the penumbra of various specific constitutional provisions which have been deemed to create zones of privacy, such as the first amendment guarantee of free speech and press and freedom of association, the third amendment's prohibition of peacetime quartering of soldiers in homes without the owner's consent, the fourth amendment's prohibition of unreasonable searches and seizures, the fifth amendment's privilege against self-incrimination and the ninth amendment's reservation to the people of the rights not enumerated in the Constitution.  16 Am.Jr.2d Constitutional Law §  602.

In spite of the above general statements of the law the Supreme Court has also held that the right to privacy is not absolute. Roe v. Wade, 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705.  In this regard, where fundamental rights such as the right of privacy are involved, state regulation limiting these rights may be justified by a showing of compelling state interest.  There is thus a balancing at this point of the interest between the state and the individual which is necessarily engaged in determining the validity of such regulation.

In analyzing the cases cited in 16 Am.Jur.2d Constitutional Law §  604, and the annotation on the right of privacy found at 43 L.Ed.2d 871, it appears to me that the cases therein cited support the proposition that a public employee would not have a protected right of privacy in preventing the  disclosure of such things as his salary schedule and job description in public employment.  While it is true that the South Dakota Cement Plant is a somewhat autonomous and distinct entity, I do not believe this unique status is determinative.  In my opinion, these individuals are nonetheless public employees and the matters sought to be discovered are within the purview of the open records provisions of South Dakota law found at SDCL 1-27.

In this regard I would also answer your inquiry by stating that I believe it is possible that certain personnel records could be different from the above decision concerning wage schedules.  If, for example, a personnel problem develops and there was an investigation into that matter, the arguments supporting the confidentiality of that material appear to me to be, on balance, much stronger.  First of all, the provisions of SDCL 1-25 provide that public agencies dealing with personnel matters such as this can deal with those matters in private executive sessions.  To me, it seems to be logical that if the meeting concerning this matter can be confidential, the documents and files concerning this same matter could also be held confidential.

Respectfully submitted,

Mark V. Meierhenry
Attorney General