July 18, 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.
I have received your letter in which you asked whether “phone records of State legislators and their staffs are accessible” under the Freedom of Information Law. You added that such records “would include telephone number, length of call, date and time of call, and expense of call” made through use of land line or cell phones.
In this regard, I offer the following comments.
Section 88 of the Freedom of Information Law deals with rights of access to records of the State Legislature. It is noted that the structure of that provision differs from that of §87 of the Freedom of Information Law, which pertains to agencies of state and local government generally. In brief, as the Freedom of Information Law applies to agencies, that statute 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 (j) of the Law. As the Law applies to the State Legislature, §88(2) and (3) include reference to certain categories of records that must be disclosed. Therefore, unless records of the Legislature fall within one or more of those categories of accessible records, there is no obligation to disclose. From my perspective, the kinds of records that you requested would not fall within the categories of records that must be disclosed by the State Legislature. Consequently, as a matter of law, it appears that the records of your interest need not be disclosed.
I point out that Rule VIII adopted by the Assembly deals with public access to Assembly records and that §1 states that:
"It is the intent of the Assembly that central administrative records maintained by the Assembly be governed by the same presumption of disclosure which governs access to executive agency records, with similar enumerated exceptions."
As such, the Assembly, by rule, has chosen to disclose or withhold its records based on standards similar to those applicable to state and local government agencies.
Section 2(2) of the rules pertains to the ability to withhold records when disclosure would constitute "an unwarranted invasion of personal privacy". An example of an unwarranted invasion of personal privacy appearing in the ensuing provisions involves the disclosure of "names, addresses, numbers or other personal identifying details of telephone communications or mail correspondence made by or to Members of the Assembly or employees thereof."
I hope that the foregoing serves to enhance your understanding of the Freedom of Information Law and that I have been of assistance.
Robert J. Freeman