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August 12, 1997

 

 

 

Mr. Charles B. Smith
135 Marion Avenue
Wynantskill, NY 12198

The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence,
unless otherwise indicated.

Dear Mr. Smith:

I have received your letter of July 17 in which you sought an
opinion concerning the propriety of denials of access to records by
Rensselaer County.

The first area of inquiry involves long distance telephone
bills made from the County Executive's office, as well as bills for
cellular phone calls made by the County Executive. While the
County disclosed the totals appearing on monthly bills, the details
on the bills were withheld, and the County's public information
officer wrote that the County Executive's office "makes many calls
to individuals seeking information on matters ranging from tourism,
to county programs and...economic development." He expressed the
view that "[t]hose individuals have an absolute right to privacy."

From my perspective, it is likely that the bills in question,
including the details to which you referred, must be made
available. In this regard, I offer the following comments.

As a general matter, the Freedom of Information Law is based
upon a presumption of access. Stated differently, all records of
an agency are available, except to the extent that records or
portions thereof fall within one or more grounds for denial
appearing in §87(2)(a) through (i) of the Law, and the introductory
language of §87(2) refers to the capacity to withhold "records or
portions thereof" that fall within the scope of the grounds for
denial that follow. In my opinion, the phrase quoted in the
preceding sentence indicates that a single record may be both
accessible or deniable in whole or in part. I believe that the
quoted phrase also imposes an obligation on agency officials to
review records sought, in their entirety, to determine which
portions, if any, may justifiably be withheld.

In my view, two of the grounds for denial may be relevant to
an analysis of rights of access to phone bills.

Section 87(2)(g) states that an agency may withhold records
that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently, those
portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.

If the bills are generated by the County, I believe that they
could be characterized as intra-agency materials. Nevertheless, in
view of their content, they would apparently consist solely of
statistical or factual information accessible under §87(2)(g)(i)
unless another basis for denial applies. As such, §87(2)(g) would
not, in my opinion, serve as a basis for denial. If the bills were
generated by a telephone company, an entity outside of government
that is not an agency, §87(2)(g) would not apply.

The other ground for denial of relevance is §87(2)(b), which
permits an agency to withhold records to the extent that disclosure
would constitute "an unwarranted invasion of personal privacy."

Although the standard concerning privacy is flexible and may
be subject to conflicting interpretations, the courts have provided
substantial direction regarding the privacy of public employees.
It is clear that public employees enjoy a lesser degree of privacy
than others, for it has been found in various contexts that public
employees are required to be more accountable than others. With
regard to records pertaining to public employees, the courts have
found that, as a general rule, records that are relevant to the
performance of a public employee's official duties are available,
for disclosure in such instances would result in a permissible
rather than an unwarranted invasion of personal privacy [see e.g.,
Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975);
Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY
2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980);
Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup.
Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664
(Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236
(1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309,
138 AD 2d 50 (1988); Steinmetz v. Board of Education, East
Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital
Newspapers v. Burns, 67 NY 2d 562 (1986)]. Conversely, to the
extent that records are irrelevant to the performance of one's
official duties, it has been found that disclosure would indeed
constitute an unwarranted invasion of personal privacy [see e.g.,
Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].

When a public officer or employee uses a telephone in the
course of his or her official duties, bills involving the use of
the telephone would, in my opinion, be relevant to the performance
of that person's official duties. On that basis, I do not believe
that disclosure would result in an unwarranted invasion of personal
privacy with respect to an officer or employee serving as a
government official.

Since phone bills often list the numbers called, the time and
length of calls and the charges, it has been contended by some that
disclosure of numbers called might result in an unwarranted
invasion of personal privacy, not with respect to a public employee
who initiated the call, but rather with respect to the recipient of
the call.

There is but one decision of which I am aware that deals with
the issue. In Wilson v. Town of Islip, one of the categories of
the records sought involved bills involving the use of cellular
telephones. In that decision, it was found that:

"The petitioner requested that the respondents
provide copies of the Town of Islip's cellular
telephone bills for 1987, 1988 and 1989. The
court correctly determined that the
respondents complied with this request by
producing the summary pages of the bills
showing costs incurred on each of the cellular
phones for the subject period. The petitioner
never specifically requested any further or
more detailed information with respect to the
telephone bills. In view of the information
disclosed in the summary pages, which
indicated that the amounts were not excessive,
it was fair and reasonable for the respondents
to conclude that they were fully complying
with the petitioner's request" [578 NYS 2d
642, 643, 179 AD 2d 763 (1992)].

The foregoing represents the entirety of the Court's decision
regarding the matter; there is no additional analysis of the issue.
I believe, however, that a more detailed analysis is required to
deal adequately with the matter.

When phone numbers appear on a bill, those numbers do not
necessarily indicate who in fact was called or who picked up the
receiver in response to a call. As indicated in the denial, the
County Executive's office makes and receives calls involving an
array of subjects. Therefore, an indication of the phone number
would disclose nothing regarding the nature of a conversation.
Further, even though the numbers may be disclosed, nothing in the
Freedom of Information Law would require an individual to indicate
the nature of a conversation. In short, I believe that the holding
in Wilson is conclusory in nature and lacks a substantial analysis
of the issue.

This is not to suggest, however, that the numbers appearing on
every phone bill must be disclosed in every instance. Exceptions
to the general rule of disclosure might arise if, for example, a
telephone is used to contact recipients of public assistance or
persons seeking certain health services. It has been advised in
the past that if a government employee contacts those classes of
persons as part of the employee's primary ongoing and routine
duties, there may be grounds for withholding phone numbers listed
on a bill. For instance, disclosure of numbers called by a
caseworker who phones applicants for or recipients of public
assistance might identify those who were contacted. In my view,
the numbers could likely be deleted in that circumstance to protect
against an unwarranted invasion of personal privacy due to the
status of those contacted. Similarly, if a law enforcement
official phones informants, disclosure of the numbers might
endanger an individual's life or safety, and the numbers might
justifiably be deleted pursuant to §87(2)(f) of the Freedom of
Information Law.

In the case of calls made by a county executive or others in
similar positions, phone calls are made to great variety of persons
in a broad variety of contexts. Unlike the caseworker who
routinely phones a class of persons having a particular status
(i.e., recipients of public assistance), as stated by the County's
public information officer, the calls made by the county
executive's office involve an assortment of issues and persons who
do not fall within any special identifiable class or status. If
that is so, disclosure of a phone number would not alone signify a
personal detail involving the recipient of a call. Further, as
suggested previously, disclosure of the number would not
necessarily indicate who received the call, nor would it disclose
anything about the nature of the call of a conversation.

In sum, subject to the unusual kinds of exceptions discussed
earlier, it appears that phone bills should be disclosed under the
Freedom of Information Law.

A related area of the request involved records "which reflect
reimbursement to Rensselaer County by the county executive for any
and all personal calls made on these phones, January 1, 1996 to
date." In conjunction with the analysis regarding the application
of paragraphs (b) and (g) of §87(2) of the Freedom of Information
Law, I believe that those kinds of records, if they exist, would be
available.

The next series of requests to which you referred involves
correspondence between the County and the State Retirement System
and other related records pertaining to the employment and
retirement of Dirk Van Ort. Based on news articles, Mr. Van Ort is
the subject of a controversy and an investigation involving
payments that might have been made to him, even though he was
absent from the workplace. According to your letter, the County
denied access on the basis of an opinion that I prepared earlier
this year concerning an unrelated matter (FOIL AO 10050). If my
understanding of the records sought is accurate, a denial of access
based on that opinion would reflect a misinterpretation or perhaps
a misapplication of the principles expressed in that opinion. I
would conjecture that the County would be alluding a portion of the
opinion that dealt with a report about certain individuals
regarding their ethical conduct or conflicts of interest. It was
advised that when individuals are the subjects of those kinds of
inquiries, and no determination has been reached to the effect that
a person has engaged in misconduct, records involving such
allegations or questions may be withheld. As stated in that
opinion:

"Insofar as those portions of the report
identifiable to individuals include
recommendations or opinions regarding their
ethical conduct or possible conflicts of
interest, for example, I believe that they
could have been withheld if no final
determination concerning their conduct had
been reached. In situations in which a person
is the subject of allegations or questions
involving impropriety or misconduct that have
not yet been determined or did not result in
disciplinary action, it has been held that
records relating to those allegations or
questions may be withheld on the ground that
disclosure would constitute an unwarranted
invasion of personal privacy [see e.g., Herald
Company v. School District of City of
Syracuse, 430 NYS2d 460 (1980). Similarly, to
the extent that allegations or charges are
found to be without merit, such records may in
my view be withheld."

The records sought were not prepared as the result of an
inquiry regarding the conduct of a public employee; on the
contrary, if my view of the matter is accurate, they were prepared
in the ordinary course of business. A key aspect of the request
involves 26 bi-weekly payroll certifications. Those records are
routinely prepared, and I believe that they would be available,
irrespective of whether an employee is the subject of some sort of
inquiry. In contrast, the records at issue in the opinion cited by
the County were prepared in response to or as part of an inquiry
concerning individuals, conduct.

I note, too, that payroll information has long been available
to the public [see e.g., Miller v. Village of Freeport, 379 NYS 2d
517, 51 AD 2d 765, (1976); Gannett Co. v. County of Monroe, 59 AD
2d 309 (1977), aff'd 45 NYS 2d 954 (1978)]. Even before the
enactment of the Freedom of Information Law, it was held that
payroll records:

"...represent important fiscal as well as
operation information. The identity of the
employees and their salaries are vital
statistics kept in the proper recordation of
departmental functioning and are the primary
sources of protection against employment
favortism. They are subject therefore to
inspection" Winston v. Mangan, 338 NYS 2d 654,
664 (1972)].

Similarly, in a decision dealing with attendance records that
was affirmed by the State's highest court, the Court of Appeals, it
was found, in essence, that disclosure would result in a
permissible rather than an unwarranted invasion of personal
privacy. Specifically, the Appellate Division found that:

"One of the most basic obligation of any
employee is to appear for work when scheduled
to do so. Concurrent with this is the rights
of an employee to properly use sick leave
available to him or her. In the instant case,
intervenor had an obligation to report for
work when scheduled along with a right to use
sick leave in accordance with his collective
bargaining agreement. The taxpayers have an
interest in such use of sick leave for
economic as well as safety reasons. Thus it
can hardly be said that disclosure of the
dates in February 1983 when intervenor made
use of sick leave would constitute an
unwarranted invasion of privacy. Further, the
motives of petitioners or the means by which
they will report the information is not
determinative since all records of government
agencies are presumptively available for
inspection without regard to the status, need,
good faith or purpose of the applicant
requesting access..." [Capital Newspapers v.
Burns, 109 AD 2d 92, 94-95 (1985), aff'd 67
NY 2d 562 (1986)].

Insofar as attendance records or time sheets include reference
to reasons for an absence, it has been advised that an explanation
of why sick time might have been used, i.e., a description of an
illness or medical problem found in records, could be withheld or
deleted from a record otherwise available, for disclosure of so
personal a detail of a person's life would likely constitute an
unwarranted invasion of personal privacy and would not be relevant
to the performance of an employee's duties. A number, however,
which merely indicates the amount of sick time or vacation time
accumulated or used, or the dates and times of attendance or
absence, would not in my view represent a personal detail of an
individual's life and would be relevant to the performance of one's
official duties.

With regard to the remainder of the records falling within the
scope of this category of request, the comments offered earlier
concerning paragraphs (b) and (g) of §87(2) would be apt and need
not be restated.

A third area of request involves records that establish an
"'On call, as needed' classification for any county employees" and
related records, including the names and title of employees "who
hold or have held the status of 'On Call as Needed' for their
employment status." The request was denied "due to the fact that
it may interfere with an ongoing investigation of the District
Attorney and deprive a person of a right to an impartial
adjudication." The language used in the denial is derived from
§87(2)(e) of the Freedom of Information Law, which enables an
agency to withhold records "compiled for law enforcement purposes"
under certain circumstances. In my view, that provision would be
inapplicable as a basis for denial, for the records sought, i.e.,
civil service classifications and similar or related documents,
would have been created in the ordinary course of business, not for
any law enforcement purpose.

To characterize the records at issue as having been compiled
for law enforcement purposes, even though they may be used in or
pertinent to an investigation, would be inconsistent with both the
language and the judicial interpretation of the Freedom of
Information Law. The Court of Appeals has held on several
occasions that the exceptions to rights of access appearing in
§87(2) "are to be narrowly construed to provide maximum access, and
the agency seeking to prevent disclosure carries the burden of
demonstrating that the requested material falls squarely within a
FOIL exemption be articulating a particularized and specific
justification for denying access" [Capital Newspapers v. Burns, 67
NY 2d 562, 566 (1986); see also, M. Farbman & Sons v. New York City
Health and Hospitals Corp., 62 NY 2d 75, 80 (1984); Fink v.
Lefkowitz, 47 NY 2d 567, 571 (1979)]. Based upon the thrust of
those decisions, §87(2)(e) should be construed narrowly in order to
foster access. Further, there is case law that illustrates why
§87(2)(e) should be construed narrowly, and why a broad
construction of that provision would give rise to an anomalous
result. Specifically, in King v. Dillon (Supreme Court, Nassau
County, December 19, 1984), the District Attorney was engaged in an
investigation of the petitioner, who had served as a village clerk.
In conjunction with the investigation, the District Attorney
obtained minutes of meetings of the village board of trustees.
Those minutes, which were prepared by the petitioner, were
requested from the District Attorney. In granting access to the
minutes, the decision indicated that "the party resisting
disclosure has the burden of proof in establishing entitlement to
the exemption," and the judge wrote that he:

"must note in the first instance that the
records sought were not compiled for law
enforcement purposes (P.O.L. 87[2]e). Minutes
of Village Board meetings serve a different
function...These were public records,
ostensibly prepared by the petitioner, so
there can be little question of the disclosure
of confidential material."

Often records prepared in the ordinary course of business,
which might already have been disclosed under the Freedom of
Information Law, become relevant to or used in a law enforcement
investigation or perhaps in litigation. In my view, when that
occurs, the records would not be transformed into records compiled
for law enforcement purposes. If they would have been available
prior to their use in a law enforcement context, I believe that
they would remain available, notwithstanding their use in that
context for a purpose inconsistent with the reason for which they
were prepared.

From my perspective, the kinds of records that you requested,
by their nature, indicate that the exception concerning records
"compiled for law enforcement purposes" is inapplicable. To
contend that records which were generated for purposes wholly
unrelated to any law enforcement investigation may now be withheld
due to their use in an investigation would, in my opinion, be
unreasonable and tend to subvert the purposes of the Freedom of
Information Law. In support of this view, I again point to the
decision rendered by the Court of Appeals in Capital Newspapers,
supra. In its discussion of the intent of the Freedom of
Information Law, the court found that the statute:

"affords all citizens the means to obtain
information concerning the day-to-day
functioning of the state and local government
thus providing the electorate with sufficient
information to 'make intelligent, informed
choices with respect to both the direction and
scope of governmental activities' and with an
effective tool for exposing waste, negligence
or abuse on the part of government officers"
(id. at 566).

Assuming that §87(2)(e) of the Freedom of Information Law
could not be asserted as a basis for denial, I believe that the
records sought, if I have accurately construed their nature, should
be disclosed.

The remaining area of inquiry pertains to your request for a
"copy of the tape which recorded the transmissions and dispatch of
an 'intercept' to meet the Berlin Volunteer Ambulance" that
transported a particular person on a particular date. The request
was denied on the basis of §308(4) of the County Law. That
provision makes "records...of calls made to a municipality's E911
system" confidential. The transmissions in question, however, were
not the 911 calls made by persons seeking emergency assistance.
Rather they were apparently made between a dispatcher and one or
more ambulance drivers. If that is so, the cited provision of the
County Law would not apply, and rights of access would be
determined by the Freedom of Information Law. If, as you
indicated, the transmissions consisted of instructions to take a
certain route, case law indicates that records of such
transmissions must generally be disclosed [see Buffalo Broadcasting
Co., Inc. v. City of Buffalo. 126 AD2d 983 (1987)].

In an effort to enhance compliance with and understanding of
the Freedom of Information Law, and to attempt to avoid the need
for litigation, copies of this opinion will be forwarded to County
officials.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Jack Madden
Stephen A. Pechenik