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FOIL-AO-14325

October 29, 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 information presented in your correspondence.

Dear

I appreciate having received a copy of a resolution approved by the Board of Trustees of the Village of Freeport concerning an appeal made pursuant to the Freedom of Information Law by Elizabeth Moore, a reporter for Newsday.

By way background, you referred to an opinion addressed to Howard E. Colton on June 3 in which it was advised that since "certain fire and law enforcement officials perform functions related to emergency situations and...their cell phones must be free of interference to the greatest extent possible", and since disclosure of their cell phone numbers could enable "potential lawbreakers [to] call those numbers constantly, thereby precluding the effective use of the cell phones to the detriment of the public", the cell phone numbers could be withheld under §87(2)(f) of the Freedom of Information Law. That provision authorizes an agency to deny access to records insofar as disclosure could "endanger the life or safety of any person."

The appeal did not deal with the cell phone numbers, but rather with a denial of a request for the names of "all individuals to whom Freeport Fire Department cellular phones are assigned." In her appeal, Ms. Moore specified that she is not "seeking to identify non-published emergency telephone numbers", but rather merely "a list of names."

While I continue to believe that the cell phone numbers may be withheld, I do not agree with the determination or with portions of the resolution concluding that disclosure of the names "would violate the previously issued opinion of the Committee on Open Government" or "circumvent" that opinion. On the contrary, in my view, there would be no basis for withholding the names of those to whom cell phones have been issued.

To reiterate a key aspect of the earlier opinion, 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 was stressed that a government agency is required to disclose its records, except to the extent that one or more the grounds for denial of access can justifiably be asserted. Again, as the Court of Appeals has indicated on several occasions:

"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[4][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 NY2d, 567, 571 (1979); also Gould v. New York City Police Department, 87 NY2d 267, 275 (1996)].

From my perspective, disclosure of the identities of police or fire officials to whom cell phones have been assigned could hardly "endanger" their lives or safety. Moreover, judicial decisions in my view indicate that the names must be disclosed. Although §§87(2)(b) and 89(2)(b) authorize an agency to withhold records or portions of records when disclosure would constitute, "an unwarranted invasion of personal privacy", 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, that fact is, in my opinion, relevant to the performance of that person's official duties. On that basis, I do not believe that disclosure of a name would result in an unwarranted invasion of personal privacy with respect to an officer or employee serving as a government official. Further, I believe that the use of a cell phone, i.e., the times and amount of time that cell phones are used, directly relates to the accountability of police and fire officials. In short, if a cell phone is overused, for example, the public in my view has the right to know that to be so. In another decision rendered by the Court of Appeals, Capital Newspapers, supra, in which it considered the intent and utility of the Freedom of Information Law, it was found that that law:

"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).

In sum, for the reasons expressed above, I disagree with the Board of Trustees' determination to withhold the names of those to whom cell phones have been assigned.

If you would like to discuss the matter, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:jm

cc: Board of Trustees
Elizabeth Moore