PNA Legal Hotline: W-2s of public employees

From the PNA Legal Hotline

By Teri Henning, General Counsel
and Melissa Melewsky, Media Law Counsel

Pennsylvania Newspaper Association

Q: Am I entitled to copies of the W-2s of public employees? I want to determine the total income they are receiving.

A: It is the PNA’s opinion that W-2s of public employees, with limited, personal information redacted, are public records under the Right to Know Law.

Under the Right to Know Law, all records in the possession of state and local agencies are presumptively public, unless they are: 1) privileged; 2) confidential by law or court order; or 3) exempt under the Right to Know Law itself.

W-2s of public employees are not privileged documents. Nor are they confidential by law. There are provisions in the tax codes that require taxing agencies to protect certain tax-related information, but these apply in the context of a government’s tax-collecting function (only to information received by a taxing authority as a result of an audit, return, report, investigation, etc.). See, e.g., 53 Pa.C.S. 8437; see also Stokwitz v. United States, 831 F.2d 893 (9th Cir. 1987). They do not apply to or prevent the release of financial
information relating to public employees by a public employer.

Finally, there is no exemption in the Right to Know law itself that would make W-2s non-public. A W-2 is a “financial record” under the law, which defines “financial record” to include the name, title, salary and other payments and expenses paid to an agency employee. All financial records of agencies are public under the Right to Know Law, although in very limited circumstances, agencies may be able to redact (or strikeout) parts of those records.

When a public record contains non-public information, the agency may redact the nonpublic information, but is required to release the remainder of the record. There are exemptions to the Right to Know Law that would allow personal information such as Social Security numbers to be redacted, but the majority of the information found in a W-2 is public information and must be released. Home addresses are presumptively public under the law.

It is important to remember that agencies seeking to withhold records have the burden of proving that a particular exemption applies or that a record is otherwise not public.

Pennsylvania Newspaper Association attorneys provide member newspapers with advice on the state's open records and open meetings laws.