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FOIL-AO-13753

December 4, 2002

 

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.

Dear

I have received your letter and the materials relating to it. You have sought an opinion
concerning a request for records pertaining to a former employee of the Metropolitan Transportation Authority ("MTA"). Although some elements of the request were granted, others were denied. In this regard, I offer the following comments.

First, as you may be aware, the Freedom of Information Law pertains to existing records, and
§89(3) of that statute provides in part that an agency need not create a record in response to a request.
In the context of your request, if, for example, the MTA does not maintain records involving the
local telephone calls made by its employees, it would not be required to attempt to acquire those
records from a source outside the agency.

Second, 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.

The key provisions under the circumstances are those cited in the correspondence, §§87(2)(b)
and 89(2)(b), both of which pertain to the ability to deny access insofar as disclosure would
constitute "an unwarranted invasion of personal privacy." Based on the judicial interpretation of the Freedom of Information Law, it is clear that public officers and employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that those individuals are required to be more accountable than others. The courts have found that, as a general rule, records that are relevant to the performance of the official duties of a public officer or employee 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 items relating to public officers or employees are irrelevant to the performance of their 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, dealing with membership in a union; Minerva v. Village of Valley Stream, Sup. Ct., Nassau Cty., May 20, 1981, involving the back of a check payable to a municipal attorney that could indicate how that person spends his/her money; Selig v. Sielaff, 200 AD 2d 298 (1994), concerning disclosure of social security numbers].

With respect to the items withheld, I note that it has been held that disclosure of a public
employee's educational background would not constitute an unwarranted invasion of personal
privacy and must be disclosed [see Ruberti, Girvin & Ferlazzo v. NYS Division of State Police, 641 NYS 2d 411, 218 AD 2d 494 (1996)]. Additionally, in Kwasnik v. City of New York (Supreme Court, New York County, September 26, 1997), the court quoted from and relied upon an opinion rendered by this office and held that those portions of resumes, including information detailing one's public employment must be disclosed. The Committee's opinion stated that:

"If, for example, an individual must have certain types of experience,
educational accomplishments or certifications as a condition
precedent to serving in [a] particular position, those aspects of a
resume or application would in my view be relevant to the
performance of the official duties of not only the individual to whom
the record pertains, but also the appointing agency or officers ... to the
extent that records sought contain information pertaining to the
requirements that must have been met to hold the position, they
should be disclosed, for I believe that disclosure of those aspects of
documents would result in a permissible rather than an unwarranted
invasion [of] personal privacy. Disclosure represents the only means
by which the public can be aware of whether the incumbent of the
position has met the requisite criteria for serving in that position.

"The Opinion further stated that:

"Although some aspects of one's employment history may be
withheld, the fact of a person's public employment is a matter of
public record, for records identifying public employees, their titles
and salaries must be prepared and made available under the Freedom
of Information Law [see §87(3)(b)]."

Kwasnik was later unanimously affirmed by the Appellate Division [262 AD2d 171 (1999)].

With regard to telephone bills, based on the decisions cited above, 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. 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.
Therefore, an indication of the phone number would ordinarily 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.

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 in the performance of one's official duties 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 this instance, it appears that portions of records indicating personal calls were deleted, in
their entirety, with the exception of a notation of the date on which a call was made. In my view,
if an employee made personal calls and reimbursed the agency for the cost of those calls, the
numbers called may be deleted on the ground that disclosure would constitute an unwarranted
invasion of personal privacy. However, I believe that the remaining entries must be disclosed. I
believe that the public has the right to know whether a public employee is making personal calls
during his or her workday, as well as the duration of those calls. Those items in my opinion clearly
bear upon the performance of one's official duties and would, if disclosed, result in a permissible,
not an unwarranted invasion of personal privacy.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director
RJF:jm
cc: Roberta Bender
Ann Cutler