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FOIL-AO-16602

 

June 5, 2007

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 materials relating to it concerning a “blanket denial of [y]our request for employees’ work-related cell phone numbers and e-mail addresses” by the New York City Department of Education. The Department denied the request based on the contention that disclosure would constitute an unwarranted invasion of the privacy of its employees.

In this regard, it has been consistently advised that disclosure of items that related to the performance of public employees’ duties must ordinarily be made available to comply with the Freedom of Information Law.

As you are aware, and as indicated in the response by the Department, pertinent is §87(2)(b) of the Freedom of Information Law, which permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy". In addition, §89(2)(b) provides a series of examples of unwarranted invasions of personal privacy.

While the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public officers ane employees. It is clear that those persons enjoy a lesser degree of privacy than others, for it has been found in various contexts that they are required to be more accountable than others. With regard to records pertaining to public officers and employees, the courts have found, as a general rule, that records that are relevant to the performance of a their 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, supra; 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].

From my perspective, the telephone numbers and email addresses assigned to public employees clearly relate to the performance of their duties and, therefore, there is nothing “personal” or intimate about them. When a public employee makes or receives a telephone call or transmits or receives email at his or her workplace, it can be assumed, in my opinion, that he/she does so in the performance of his/her official duties. In situations that arguably involve more personal information than the telephone number or the email address itself, it has been held that telephone bills indicating numbers called through the use of a public employees cell phone are generally available [Hawley v. Village of Penn Yan, 35 AD2d 1270, 827 NYS2d 390 (2006)], and that email communications stored on a school district’s computer are subject to rights conferred by the Freedom of Information Law. In Baynes v. Fairport Central School District (Supreme Court, Monroe County, November 1, 2006), the judge ruled from the bench, stating that:

“The electronic data generated by these activities are stored in the servers and systems belonging to the District. A separate District Administrative regulation (#53505) which implements Board policy #53500 provides, in effect, that all data stored in such files and servers are District property and that the District may access such files to ensure system integrity. The regulation also states that individuals should not have any expectation of privacy in such records...The Court has examined the record and the applicable law and cannot find any statutory basis for exempting disclosure of the records sought...”

The exceptional circumstance in which a telephone number might be withheld would involve the situation in which a particular number is dedicated to emergency communications associated with public safety or criminal law enforcement. If callers could preclude telephones from being used as intended, it might be contended that disclosure of the numbers could, if disclosed, endanger life or safety and be withheld under §87(2)(f) of the Freedom of Information Law. That, however, would likely be the only circumstance in which the telephone number, whether related to a desk phone or a cell phone, might justifiably be withheld.

With respect to email addresses, as you know, it has been advised in the past that public employees’ email addresses could properly be withheld pursuant to §87(2)(i) of the Freedom of Information Law. That provision authorizes an agency to withheld records which “if disclosed would jeopardize an agency’s capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures.” Through disclosure of email addresses, viruses could be transmitted or other incursions might occur that could result in the harm sought to be avoided by that provision.

While I believe that the advice initially offered was appropriate, the realities of information technology relative to the use of email have changed. Government agencies now typically employ a variety of security measures and anti-virus software to prevent the harm envisioned by §87(2)(i) that might have occurred during the recent past. By means of example, this agency, the Department of State, as well as many other state agencies, now use software which has significantly limited the nature and the amount of unsolicited or junk mail that many of us had received. Further, email addresses are disclosed any time that a public employee transmits email, and the recipient may then share those addresses without limitation. Also significant is that email addresses can often easily be determined. The latter part of a public employee’s email address usually indicates the agency’s name or abbreviation and is routinely available on the agency’s website, numerous publications and directories, or through the use of any number of search engines. To confirm that point, as an experiment, I “googled” the New York City Department of Education, found its website instantly, and more importantly in relation to your request, found that the website includes links to individual employees’ email addresses.

In short, email addresses of government employees today, in 2007, cannot in my opinion be characterized as secret. The Court of Appeals held years ago and has confirmed on several occasions that:

"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].

In consideration of the advances in information technology, the use of security systems and the general proliferation of the use and disclosure of email addresses, I do not believe that the Department could meet the burden of proving that those items may justifiably be withheld.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director
RJF:jm
cc: Michael Best
Susan W. Holtzman