June 3, 2003
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.
I have received your letter of May 1 in which you referred to our conversation relating to public access to cell phone records.
You wrote that we agreed that:
"...the Village may redact that portion of the cell phone bill, which would identify the actual number of the particular phone for which the bill was generated because a release of that number could tie up the phone line in the case of an emergency."
However, you added that:
"In reviewing that theory, couldn't it be said that the Village also has the obligation to redact that portion of the cell phone bill, which would identify other non-published emergency numbers that might have been called by said Fire Department personnel. It is foreseeable that the phone bill at issue could contain numbers of other Fire Chiefs, Police Department personnel, Fire Marshals, etc. Obviously, a release of these non-published numbers could jeopardize the phone lines of these other emergency personnel. If that is the case, and considering that the Village has approximately three hundred pages of phone records, for which the Village would have to review each page, decipher the numbers and then redact same (however, with staffing constraints that could and will be difficult) must the Village supply the listing at all?"
In this regard, during our discussion, we considered the fact that certain fire and law enforcement officials perform functions related to emergency situations and that their cell phones must be free of interference to the greatest extent possible. If their cell phone numbers were to be made public, potential law breakers might call those numbers constantly, thereby precluding the effective use of the cell phones to the detriment of the public. In that kind of situation, I believe that §87(2)(f) might properly be cited. That provision authorizes an agency to deny access to records insofar as disclosure " would endanger the life or safety of any person."
Those numbers are known only to a select few, and presumably they are used for emergency use only. In contrast, the other phone numbers which you referred appear to be used for routine purposes of communication; only in rare occasions would they be used to make or receive an emergency call. Disclosure of those phone numbers "that might have been called" in relation to an emergency, must in my view be disclosed. The phone on my desk might be used on a rare occasion in relation to an emergency, but that is not the primary use or significance of the phone, and my phone number, therefore, must be disclosed. I believe that the same conclusion should be reached in the context of your inquiry.
Further, as you are aware, 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. It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In my view, the phrase quoted in the preceding sentence evidences a recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, I believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.
The Court of Appeals expressed its general view of the intent of the Freedom of Information Law in a recent decision to which you referred in your appeal, Gould v. New York City Police Department [87 NY 2d 267 (1996)], stating that:
"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).
Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the agency contended that complaint follow up reports, also known as "DD5's", could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276). The Court then stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, directing that:
"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).
In the context of the situation that you described, I do not believe that a "blanket denial" of access would be consistent with law. I am not suggesting that the records sought must be disclosed in full. Rather, based on the direction given by the Court of Appeals in several decisions, the records must be reviewed for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).
I hope that I have been of assistance.
Robert J. Freeman