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FOIL-AO-17497

                                                                                                January 20, 2009

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 wrote that you serve as an attorney for Ms. Barbara Nackman, a reporter for the Journal News, as well as the online site, lohud.com.

            Ms. Nackman submitted a request to the Town of Carmel for records relating to the use of cellular phones and pagers paid by the Town. Due to its volume, she voluntarily narrowed  the request to records relating to cell phones used by Town Board members, including the Supervisor for the years 2006, 2007 and 2008. Although the request was granted in part, the Town Clerk wrote that she was informed that "all itemized call pages from these documents will be redacted and/or removed due to privacy issues, privilege issues and FOIL exemptions." Ms. Nackman's appeal was denied in its entirety in a lengthy determination by the Town Supervisor, who cited several exceptions to rights of access appearing in the Freedom of Information Law and advisory opinions rendered by this office in support of his conclusion.

            From my perspective, the Supervisor has misinterpreted judicial decisions and the advisory opinions rendered by this office, and he has asserted exceptions in a manner that is inconsistent with law.  In this regard, I offer the following comments.

            First, 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 (j) of the Law.

             Second, it is emphasized that the courts have construed the exceptions to rights of access narrowly in a manner that fosters disclosure and enhances rights of access.  Further, should a lawsuit be initiated challenging an agency's denial of access, the agency has the burden of proving that the records, or portions of records, were justifiably withheld in accordance with the language of the exceptions.  As stated by the Court of Appeals more than decade ago:

"To be sure, the balance is presumptively struck in favor of disclosure, but in eight specific, narrowly constructed instances where the governmental agency convincingly demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2).  Thus, the agency does not have carte blanche to withhold any information it pleases.  Rather, it is required to articulate particularized and specific justification and, if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908).  Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]."

            The Supervisor referred to the exception concerning "an unwarranted invasion of personal privacy", §§87(2)(b) and 89(2)(b), relating to persons called by himself or other Board members, particularly those portions of the records that indicate the home and/or cellular phone numbers of those persons, or perhaps unlisted numbers.  He referred to opinions prepared by this office suggesting that telephone number of municipal employees may be withheld when the employees 
are, in his words, "assigned important government functions in the event of an emergency."  He wrote that disclosure could jeopardize the security of the Town's information security assets, citing §87(2)(i), or "impair present or imminent contract awards or collective bargaining agreements since the Town Board Members and the Supervisor make and receive cellular telephone calls  pertaining to such issues on a regular basis", referring to §87(2)(c)  He noted that the members of the Board and the Supervisor "serve concurrently as Commissioners for the Police Department, Fire Department and Volunteer Ambulance Corps" and "are considered to be law enforcement personnel", have "emergency response obligations",  and "have been called on from time to time to authorize undercover narcotics operations and undercover operations by the State Liquor Authority", referencing §87(2)(e)and (f).

            Here I point out that there is no judicial decision rendered in New York of which I am aware that has considered access to the records at issue in detail.  I am mindful of the decision rendered in Hawley v. Village of Penn Yan [38 AD3d 1371 (2007)].  That decision made no reference to the agency's obligation to meet the burden of proof, i.e., by demonstrating that disclosure of certain numbers appearing on a bill would constitute an unwarranted invasion of personal privacy or that they could properly be withheld under any other exception,

            In my opinion, the critical flaw in the Supervisor's contentions is that disclosure of the phone numbers called as they appear on bills relating to himself and other members of the Town Board indicate little, if anything, about the nature of the communications or the subject matter that might have been discussed.  If a Board member contacts counsel retained to deal with collective bargaining negotiations, disclosure of the number called without more, indicates nothing about the nature of the conversation. Reference to phone numbers of private citizens indicates nothing about the nature of the conversations.  And it may be true that Board members "from time to time" may be in contact with law enforcement agencies, but again, disclosure of the phone numbers alone indicates nothing about the nature of the conversations.

            In contrast, in situations in which public employees' duties focus on particular areas, disclosure of phone numbers could result in predictable outcomes.  For instance, it has been suggested that the phone bills of a social services caseworker whose primary function involves contacting persons in receipt of public assistance could, if disclosed, identify a class of persons based on a particular characteristic, that they are poor.  In my opinion, the last four digits of the numbers called could, in that circumstance, be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy.  If a law enforcement employee has as a primary function interviewing witnesses to crimes, disclosure of the numbers called might endanger the lives or safety of witnesses or interfere in some manner with a criminal investigation.  Again, in that kind of circumstance, it has been advised that the last four digits of the numbers appearing on a bill may be withheld.

            I do not believe, however, that to be so in the case of a town supervisor, members of a municipal board, or myself, for example.  On any given day, I might make or return phone calls to members of the public, including persons with questions regarding unemployment insurance, public assistance, child abuse, their children's education - - a variety of intimate details of their lives; to government officials, including chiefs of police, attorneys for state and local government agencies, staff of the Governor; to members of the news media concerning an array of issues.  Nevertheless, a review of my phone bill indicates little or nothing about the nature of a conversation.

            Just as significant, if I review my phone bill, I will not be able to identify the phone numbers that relate to particular members of the public or recall, on the basis of a phone number, the nature of the conversation.  If my phone bills were withheld and if I am required to go before a judge who refers to a certain telephone number appearing on a bill, unless it is a phone number relating to a family member, ordinarily, I will not be able to identify the person that I called, I will not be able to indicate anything about the conversation, and I will not be able to assert that the phone number called is unlisted or pertains to a cellular phone.

            Except in the kind of rare circumstance that was mentioned, the call to family members, I cannot demonstrate that the harmful effects of disclosure described in the Supervisor's determination would indeed arise.  In short, I could not meet the burden of proof needed to justify a denial of access as required by §89(4)(b) of the Freedom of Information Law.  Similarly, because the Supervisor and Town Board members also use their phones for a variety of reasons to contact people both inside and outside of government, I not believe that they could meet the burden of defending secrecy.

            With respect to the privacy of government officers or employees who make calls using a phone for which the government agency pays, it is my opinion it must be assumed that those persons, when using such a phone, do so in the performance of their duties.  Because that is so, I do not believe that disclosure of bills would result in an unwarranted invasion of the privacy of those persons.  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 involving the use of the telephone would, in my opinion, be relevant to the performance of that person's official 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 official.

            The remaining contention offered by the Supervisor involves the argument that “compliance with such a request is not possible without extraordinary efforts to protect against...” the affects of disclosure to which he referred.  In my opinion, the problem is the result of the Town’s own actions.  In brief, a decision was made to provide cell phones to a variety of officers or employees, apparently with no restriction on their use.  That being so, I do not believe that the Supervisor could justifiably complain about the burden involved in reviewing records to determine rights of access.  I point out, too, that a recent amendment to the Freedom of Information Law [see §89(3)(a)] indicates the volume of a request cannot constitute a valid basis for denying the request.

            For purposes of analogy, in my capacity as an employee of a state agency, when I turn on my pc upon entering the office, I am obliged to agree to a variety of conditions.  As the conditions relate to the instant controversy, they specify that any information transmitted to me through the pc constitutes a government agency record and is the property of the Department of Sate; similarly any information that I transmit through use of the pc is a government agency record that is the property of the Department of State.  The information and the records are not mine; they belong to the government and, therefore, the public through rights conferred by the Freedom of Information Law.

            With respect to the use of telephones, whether desk phones or cell phones, Department of State Policy specifies that “telephones are to be used for state business only...and prudent use of phones for essential local calls is permitted.  Supervisors should review the circumstances to be sure they are essential for the health and welfare of an employee’s family.”  When an individual makes a personal call to a family member or friend, presumably the employee is aware of the phone number of the family member or friend and could identify it readily on a bill.  As suggested earlier, in that situation, there may be justification for deletion of the last four digits of the phone number called on the ground that disclosure would result in an unwarranted invasion of personal privacy.  However, other items appearing on the bill relating to those calls, such as the duration or number of calls in my view would clearly be public.  The policy also provides that “personal calls must also be kept to an absolute minimum since employees are on state time and using state equipment.”

            Lastly, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:

"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79).  The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (Capital Newspapers, supra, 565-566).

            In sum, subject to the qualifications discussed in the preceding remarks, I believe that the records at issue must be disclosed.

            In an effort to resolve the matter and avoid litigation, copies of this opinion will be sent to Town officials.

I hope that I have been of assistance.

 

                                                                                                Sincerely,

 

                                                                                                Robert J. Freeman
                                                                                                Executive Director

RJF:jm

cc:  Hon. Kenneth Schmitt
Hon. Ann Garris