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FOIL-AO-16629

June 21, 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 facts presented in your correspondence.

Dear

As you are aware, I have received your correspondence concerning your efforts in obtaining detailed information concerning the use of a cell phone by the Mayor of the City of Auburn.

Based on a review of the correspondence, the City had paid the entirety of the bill for the Mayor’s use of a cell phone until November of 2004, and total amounts billed up to that period were disclosed to you. Starting in November of that year, the City has been paying the Mayor for his use of a cell phone based on a flat monthly fee, and the City does not reimburse for any amount above the monthly rate. The bill is sent directly to the Mayor, who “pays the bill himself with the help of the now $45.00 City share”, and “no other portion of the monthly billing is disclosed to the City.” Because the City has no additional record involving use of a cell phone by the Mayor, no records, other than that indicating the “City share”, are accessible. In conversation with Ms. Camille Jobin-Davis of this office, you were advised that, because there are no additional records maintained by the City, there is nothing more to be disclosed pursuant to the Freedom of Information Law. You suggested that “That interpretation would mean that Department billings would also not be available either because the detail was given to the Department head and he or she did not keep them.”

If my understanding of the matter is accurate, the Mayor has a personal cell phone, which he uses for both personal and City business. Rather than attempting to identify and determine the cost of City related calls, the City has agreed to provide what appears to be akin to a small increase in salary, $45.00 per month, to the Mayor so that he can be billed directly at his residence and use his cell phone as he sees fit. If that is so, it appears that the City has met its obligations under the Freedom of Information Law.

As you may be aware, that statute pertains to records of an agency, such as a city, and §86(4) defines the term “record” 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."

Based on the foregoing, insofar as documentation is maintained by or for the City, it would constitute an agency record that falls within the coverage of the Freedom of Information Law. As I understand the situation as it pertains to the Mayor, no record is maintained by or for the City; rather, the Mayor receives a bill at his home for use of his cell phone and is simply given a stipend that he may spend as he desires or apply to the use of the phone. If that is so, there would be no detailed record of his cell phone use that would be subject to the Freedom of Information Law.

I believe, however, that your conclusion concerning the use of cell phones by City personnel is inaccurate. In that situation, records concerning cell phone use would come into the possession of the City and, therefore, would be subject to rights granted by the Freedom of Information Law. It is also noted that records cannot be discarded or destroyed at will. Section 57.25 of the Arts and Cultural Affairs Law deals with the retention and disposal of local government records. In brief, schedules are developed indicating minimum retention periods for classes of records that are based largely on the significance or value of the records. Only when the minimum retention period has elapsed may records be discarded or destroyed.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: John C. Rossi