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Alaska Wildlife Alliance v. Alaska Dep't. of Fish & Game (11/28/97), 948 P 2d 976
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska
99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
THE ALASKA WILDLIFE ALLIANCE, )
) Supreme Court No. S-7448
) Superior Court Nos.
v. ) 3AN-94-3340 CI / 3AN-94-4168 CI
FRANK RUE, COMMISSIONER, )
ALASKA DEPARTMENT OF FISH & ) O P I N I O N
GAME, and THE ALASKA )
DEPARTMENT OF FISH & GAME, ) [No. 4910 - November 28, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Donald D. Hopwood, Judge.
Appearances: Sharon A. Sturges, Anchorage, for
Appellant. Kevin M. Saxby, Assistant Attorney General, Anchorage,
and Bruce M. Botelho, Attorney General, Juneau, for Appellees.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
COMPTON, Chief Justice.
The Alaska Wildlife Alliance (AWA) sought disclosure of
public employee and private contractor names and time sheets
maintained by the Alaska Department of Fish & Game (Department or
ADF&G). The Department refused to disclose certain names and time
sheets. AWA appealed to the Commissioner of ADF&G. The
Commissioner upheld the Department's refusal. On appeal, the
superior court affirmed. The superior court also concluded that
AWA was not entitled to attorney's fees as a prevailing public
interest litigant. AWA appeals the superior court's decision
regarding nondisclosure and public interest litigant status. We
affirm in part and remand in part.
II. FACTS AND PROCEEDINGS
During the winter of 1993-94, the Department implemented
a wolf control program (program) in interior Alaska. The program
included the snaring, trapping, and shooting of wolves by
Department employees, using private contractors for transportation.
Between June 1993 and March 1994 various state offices received
letters and phone calls which threatened the lives and property of
Department employees and private contractors who were involved in
the wolf control program, as well as their families.
In 1994 AWA sought to audit money spent by the Department
on the program. AWA twice asked the Department to disclose
documents concerning the program, including the names and titles of
all Department employees and private contractors working on the
program, and billing and payroll information (time sheets) of the
Department employees and private contractors.
In response to the first request, the Department provided
AWA with a list of its employees and time sheets, but redacted the
names of select employees involved in the program. It withheld the
names, ostensibly under article I, section 22 of the Alaska
Constitution, to protect the privacy of its employees and private
contractors, stating that "[t]he state has received threats against
the persons, property and families of people involved in this
program, and we are obligated to protect them from harassment or
harm." In response to the second request, the Department withheld
both names and time sheets, asserting that the time sheets are
confidential pursuant to AS 39.25.080. [Fn. 1]
The Commissioner of ADF&G affirmed the Department's
action as to both requests. AWA appealed both decisions to the
superior court, which consolidated the cases for review. The
superior court affirmed the Commissioner's decision as to the names
of Department employees working in the program. It concluded that
under article I, section 22 of the Alaska Constitution, which
guarantees a right to privacy, the names were protected from
disclosure. The superior court found no distinction between
Department employees and private contractors for the purpose of
this constitutional protection. The superior court did not
directly address the disclosure of time sheets, holding only that
the Department was not required to disclose the names of those
employees directly involved in the program. AWA then moved for an
award of attorney's fees, claiming that it was a public interest
litigant, and that it was a prevailing party. [Fn. 2] The superior
court denied this motion, finding that AWA was neither a public
interest litigant nor the prevailing party. AWA appeals the non-
disclosure of names and time sheets and the order regarding
We address three issues on appeal: (1) Are public
employee time sheets personnel records within the meaning of
AS 39.25.080? (2) Is an agency, when faced with a request made
under the Public Records Act, AS 09.25.100 et seq., entitled to
withhold public employee and private contractor names based on the
right to privacy contained in article I, section 22 of the Alaska
Constitution? (3) Was AWA entitled to attorney's fees as a
prevailing public interest litigant?
A. The Public Records Act
1. Standard of review
When the superior court acts as an intermediate court of
appeal, we give no deference to its decision. See Plumber v.
University of Alaska, 936 P.2d 163, 166 (Alaska 1997). We exercise
independent judgment when interpreting statutes which do not
implicate an agency's special expertise or determination of
fundamental policies. See Keane v. Local Boundary Comm'n, 893 P.2d
1239, 1241 (Alaska 1995). The Public Records Act and State
Personnel Act are such statutes. Similarly, we apply independent
judgment to constitutional issues, adopting "a reasonable and
practical interpretation in accordance with common sense"based
upon "the plain meaning and purpose of the provision and the intent
of the framers." Arco Alaska, Inc. v. State, 824 P.2d 708, 710
(Alaska 1992) (citing Kochutin v. State, 739 P.2d 170, 171 (Alaska
2. The statute
The Public Records Act provides for the disclosure to the
public of state agency records, subject to limited exceptions. [Fn.
3] "Public records"are defined as:
[B]ooks, papers, files, accounts, writings,
including drafts and memorializations of conversations, and other
items, regardless of format or physical characteristics, that are
developed or received by a public agency, or by a private
contractor for a public agency, and that are preserved for their
informational value or as evidence of the organization or operation
of the public agency.
AS 09.25.220(3). The billing and payroll information requested by
AWA falls under this broad definition of public records.
3. Time sheets
Alaska Statute 39.25.080 exempts state personnel records
from the Public Records Act. It provides in part:
(a) State personnel records, including
employment applications and examination materials, are confidential
and are not open to public inspection except as provided in this
(b) The following information is available
for public inspection, subject to reasonable regulations on the
time and manner of inspection:
(1) the names and position titles of all
(2) the position held by a state
. . . .
(6) the compensation authorized for a
No Alaska case has considered the question whether time
sheets are "state personnel records"pursuant to AS 39.25.080. [Fn.
4] However, examples of documents covered and exempted provided by
the Public Records Act are revealing. Alaska Statute 39.25.080(a)
lists as examples of personnel records "employment applications"
and "examination materials." Both types of documents contain
details about the employee's or applicant's personal life. By
contrast, exceptions to AS 39.25.080(a) include "position titles,"
"dates of appointment and separation,"and "compensation
authorized." AS 39.05.080(b)(1),(5),(6). Such information tells
little about the individual's personal life, but instead simply
describes employment status. We hold that time sheets, which
indicate merely the hours worked for the public employer, are
properly included in the definition of public records provided in
AS 09.25.220(3) -- "papers . . . developed . . . as evidence of
the organization or operation of the public agency." They are not
subject to the confidentiality provisions of AS 39.25.080.
4. Alaska's constitutional right to privacy
Former 6 Alaska Administrative Code (AAC) 95.090(a)(4),
in effect at the times relevant to this case, authorized denial of
records requested under the Public Records Act if "a valid Alaska
or federal statute or regulation, or a . . . principle recognized
by the courts . . . authorizes nondisclosure of the record."
Article I, section 22 of the Alaska Constitution provides that
"[t]he right of the people to privacy is recognized and shall not
be infringed." In Falcon v. Alaska Public Offices Commission, 570
P.2d 469 (Alaska 1977), we recognized the principle that, under
appropriate circumstances, a statute requiring the disclosure of a
person's identity must yield to the constitutional right to
privacy. Id. at 480. This principle is equally applicable in the
context of a Public Records Act request, and comes within the
meaning of former 6 AAC 95.090(a)(4).
In Falcon we also made clear that we would permit a
litigant to assert the privacy interests of third parties when (1)
third parties, in attempting to vindicate their rights, would
forfeit the very privacy they sought to protect and (2) the
interests of the litigants are adverse. Id. at 475. The
Department's interest in protecting its employees is clearly
adverse to AWA's interest in obtaining Department employee names.
It is also clear that if these employees attempted to vindicate
their own privacy rights, they would forfeit the privacy they
sought to protect -- their identities. We therefore hold that the
Department has standing to assert the privacy interests of its
employees in the instant case.
In Jones v. Jennings, 788 P.2d 732, 738 (Alaska 1990),
this court adopted a three-part test for applying Alaska's
constitutional right to privacy:
(1) does the party seeking to come
within the protection of the right to [privacy] have a legitimate
expectation that the materials or information will not be
(2) is disclosure nonetheless required
to serve a compelling state interest?
(3) if so, will the necessary disclosure
occur in that manner which is least intrusive with respect to the
right to [privacy]?
Id. (quoting Martinelli v. District Court, 612 P.2d 1083, 1091
The Department concedes that public employees and private
contractors generally do not have any expectation that their status
as public employees or private contractors will be confidential.
In the instant case, however, the Department determined that "the
[Department] employees and contractors directly involved in
predator control had a legitimate expectation that their
involvement in the wolf control program would not be publicly
disclosed after threats were received against their lives and their
families." We agree that where there are credible threats against
the lives of public employees and private contractors, their
expectation that the state will protect them by not disclosing
their names is legitimate. [Fn. 5]
There remains the question whether disclosure is
nonetheless required to serve a compelling state interest. To
answer it requires us to balance the public's interest in the full
accountability of the state to its people against the Department
employees' and private contractors' interests in anonymity. See
City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316,
1323 (Alaska 1982) ("[Q]uestions such as these require a balance to
be struck between the public interest in disclosure on the one hand
and the privacy . . . interests of the affected individuals . . .
on the other."). We conclude that AWA's asserted interest in
"verifying accountability of public funds"does not justify putting
the Department's employees, private contractors, and their
respective families in harm's way. AWA is entitled to receive the
requested time sheets only with the necessary employee and private
contractor names redacted.
B. Was AWA Entitled to Attorney's Fees as a Prevailing
Public Interest Litigant?
We review determinations of the award or denial of
attorney's fees for abuse of discretion. See McNett v. Alyeska
Pipeline Serv. Co., 856 P.2d 1165, 1167 (Alaska 1993).
The test for whether a party is a "prevailing party"for
purposes of an attorney's fee award is set forth in Hickel v.
Southeast Conference, 868 P.2d 919 (Alaska 1994). This test
requires the court to determine, in an overall sense, which party
the decision favors. Id. at 925. While it permits the superior
court to apportion attorney's fees among issues, it does not
require it to do so. Id. at 924-26. Apportionment of attorney's
fees among issues is not the standard practice. We cannot say that
it was an abuse of discretion for the superior court to determine
that AWA was not a prevailing party, where AWA was unsuccessful in
obtaining the requested names of the Department's employees.
Because we agree that AWA was not a prevailing party, we need not
address whether AWA satisfied the requirements for public interest
We AFFIRM the judgment of the superior court in part and
REMAND in part for proceedings consistent with Part III.A.3. of
AS 39.25.080 exempts state personnel records from disclosure
under the Public Records Act, AS 09.25.100 et seq.
AWA had also sought disclosure of the locations of traps
and snares used in the program. It prevailed on this issue.
AS 09.25.110(a) provides: "Unless specifically provided
otherwise, the public records of all public agencies are open to
inspection by the public under reasonable rules during regular
Courts in other states have found that payroll records,
vacation and sick leave attendance records are disclosable under
state public records laws, reasoning that such records are not
private facts of a personal nature as contemplated by such laws.
See Perkins v. Freedom of Info. Comm'n, 635 A.2d 783 (Conn. 1993);
Brogan v. School Comm. of Westport, 516 N.E.2d 159, 160-61 (Mass.
1987); Sipe v. Snyder, 640 A.2d 1374, 1381 (Pa. Commw. Ct. 1994);
Kanzelmeyer v. Eger, 329 A.2d 307, 308-10 (Pa. Commw. Ct. 1974).
A party requesting public employee and private contractor
names may contest the existence or credibility of such threats. If
so, it may be that the employing agency will bear a significant
burden to show that the threats are both real and credible.
However, we are not presented with that question. With limited
exceptions not applicable here, we will not consider matters on
appeal which are not raised below. See Zeman v. Lufthansa German
Airlines, 699 P.2d 1274, 1280 (Alaska 1985) ("As a general rule, a
party may not present new issues or advance new theories to secure
reversal of a lower court decision."). AWA did not argue the
existence or credibility of the threats in its appeals to the
Commissioner of ADF&G, though at that point AWA was aware of the
Department's assertion that threats had been made to the lives of
its employees and private contractors working on the program. AWA
waived this issue by failing to raise it in the agency appeals. We
will not consider it now. We assume for purposes of this appeal,
as did the superior court, that the alleged threats to the lives of
the Department employees and private contractors are real and