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FOIL-AO-15913

April 20, 2006

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

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 in which you asked whether certain information concerning a public employee’s use of an agency’s computer is accessible under the Freedom of Information Law. Specifically, you referred to "Internet cache folders, Internet History folders and Internet Favorites folders."

In this regard, while I am not an expert concerning information technology, it is my understanding that the items to which you referred involve the use of a computer and reflect the internet sites visited by the user of a computer as well as email communications, all of which are stored in a computer’s hard drive.

I know of no judicial decision pertaining to the Freedom of Information Law that has focused on the issue that you raised. However, assuming that the data is maintained and can be retrieved or extracted by an agency, it appears that it would fall within the coverage of the Freedom of Information Law.

That statute pertains to all agency records and defines the term "record" expansively in §86(4) to mean:

"...any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes."

From my perspective, when data stored in a computer can be brought up on a screen or printed, it constitutes a record that falls within the coverage of the Freedom of Information Law.

If the items at issue constitute agency records, they are subject to rights of access. 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 record of internet use on an agency computer might be analogized to a public employee’s use of an agency telephone and access to phone bills or logs indicating telephone usage.

Perhaps most pertinent under the circumstances are §§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].

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 or logs 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.

Again, if my understanding of the nature of data in question is accurate, there would be no basis for withholding items involving visits to websites. However, if the data includes the contents of email, as in the case of any other records, their nature would serve as the means of determining rights of access. For instance, depending on the content of those records, it is possible that disclosure would constitute an unwarranted invasion of personal privacy with respect to persons other than the employees using the computer. Further, many email communications might consist of inter-agency or intra-agency materials falling within §87(2)(g). Based on the structure of that provision, those communications may be accessible or deniable, in whole or in part, based on their content.

I hope that I have been of assistance.

RJF:jm