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FOIL-AO-14941

October 7, 2004

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.

Dear

I have received your letter and the materials attached to it. You have sought an opinion concerning the deletion of portions of a bill indicating expenses incurred by an official of the City of Oswego during a stay at a hotel. Specifically, telephone numbers called were deleted, and it is you view that the numbers called should be accessible, and that the cost of those calls should be reimbursed to the City. The City Attorney cited §89(2)(b)(iv) and (v) of the Freedom of Information Law to justify the denial of access to the phone numbers. Those provisions indicate that an agency may withhold records or portions of records when disclosure would constitute "an unwarranted invasion of personal privacy" and that such unwarranted invasions of privacy include:

"iv. Disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or

v. Disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."

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.

The pertinent provisions under the circumstances are, as suggested by the City Attorney, §§87(2)(b) and 89(2)(b), both of which pertain to the ability to deny access when 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 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 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 officer or employee.

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. Nevertheless, 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 little or 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.

Significant in my opinion is the direction provided in the State Comptroller’s travel manual, which states that "Only telephone charges for official state business may be reimbursed." That rule is, in my opinion, consistent with the preceding commentary. When a public officer or employee is in travel status and he or she uses a telephone, in order to be reimbursed for a telephone call, the call must be made in performance of that person’s duties. In that circumstance, the record relating to the call, including the phone number, is in my view relevant to the performance of that person’s duties, and in addition, it would relevant to the work of the agency that he or she serves, for the agency would bear the cost only when the call involves government business. That being so, I believe that disclosure would result in a permissible rather than an unwarranted invasion of personal privacy. On the other hand, when a public officer or employee reimburses an agency for the cost of telephone calls because those calls are personal and irrelevant to that person’s work or the work of the agency, the phone numbers called may, in my opinion, be justifiably deleted.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Edward J. Izyk
Hon. John J. Gosek
Hon. Jeanne Berlin