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FOIL-AO-17992

                                                                                                February 9, 2010

 

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

            We are in receipt of your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Village of Scarsdale.  Specifically, you sought clarification of our position on rights of access to cell phone records under the Freedom of Information Law.  You make a persuasive argument that an agency cannot rely solely on an employee’s indication that a telephone number is “personal”, and that it continues to bear the burden of proving that telephone call information redacted from a record falls squarely within the scope of an exception.  In doing so, you mentioned issues that were addressed in a previous advisory opinion (FOIL-AO-13753) written by this office, which we now address and clarify. 

            First, 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 (k) of the Law.

            The key provisions under the circumstances are §§87(2)(b) and 89(2)(b), both of which pertain to the ability to deny access insofar as 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].

            With regard to telephone bills, 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 our opinion, be relevant to the performance of that person's official duties.  On that basis and in general, we 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.

            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.  When phone numbers appear on a bill, however, 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 nothing regarding the nature of a conversation or contact.  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.

            This is not to suggest, however, that the numbers appearing on every phone bill must be disclosed in every instance.  Exceptions to the general rule of disclosure might arise if a telephone is used during the performance of one's official duties to contact recipients of public assistance or persons seeking certain health services.  We have previously advised that if a government employee contacts those classes of persons as part of the employee's primary ongoing and routine duties, there may be a basis for withholding the last four digits of phone numbers listed on a bill.  For instance, disclosure of numbers called by a caseworker who phones applicants for or recipients of public assistance might identify those who were contacted.  In our view, the last four digits could likely be deleted in that circumstance to protect against an unwarranted invasion of personal privacy due to the status of those contacted. Similarly, if a law enforcement official phones informants, disclosure of the numbers might endanger an individual's life or safety, and the numbers might justifiably be deleted pursuant to §87(2)(f) of the Freedom of Information Law.

            It is our understanding that public employees and officials are typically permitted limited telephone use for family and personal purposes during regular business hours.  In this regard, it is our opinion that when a record indicates that home telephone number was called, or a personal call was placed to a residential telephone number, disclosure could result in an unwarranted invasion of personal privacy.  Similarly, when a personal call is placed to a private person’s cellular phone number, in our opinion, release of that phone number to the public could constitute an unwarranted invasion of personal privacy of the person to whom the phone is issued, and in some cases cause additional financial responsibility.  In our opinion, records of calls made to commercial entities for non-work related purposes would not necessarily result in an unwarranted invasion of personal privacy.

            The issuance of cell phones to public officials and employees for business purposes has resulted in varying payment and billing arrangements that may require a public official or employee to contribute toward the ongoing costs associated with the use of the phone.  When a public official or employee is permitted unlimited personal use of a government issued cell phone, different issues regarding disclosure of records emerge.  For example, disclosure of the volume of time a person spends on a cell phone during non-work hours is irrelevant to an individual’s job performance, and in our opinion, would result in an unwarranted invasion of personal privacy.  Similarly, full disclosure of the telephone numbers called or the telephone numbers from which calls originated during non-work hours, in our opinion would result in an unwarranted invasion of personal privacy when those calls are not work-related.  Disclosure of the costs associated therewith, on the other hand, would not result in an unwarranted invasion of personal privacy, as the dollar value of a benefit conferred on an employee would involve a matter directly related to the person’s employment.

            With respect to records of telephone numbers reached when an employee is working, we believe that unless disclosure would result in an unwarranted invasion of personal privacy in relation to the persons contacted by the cell phone user, or who contacted the cell phone user, the agency would be required to disclose such information.  For example, again, if the telephone number listed on the bill is the employee’s home telephone number or the cell phone number of a private person, or a residential number known to be unlisted, in our opinion, disclosure could result in an unwarranted invasion of personal privacy.  On the other hand, if the telephone number listed is a published telephone number for a commercial entity such as a pizza parlor or a real estate appraiser, we do not believe the agency would have the authority to deny access.  In our opinion, therefore, an indication that a phone call made during scheduled work hours was “personal”, with nothing more, would be insufficient to show that disclosure would result in an unwarranted invasion of personal privacy.

            In this case, the Village has permitted the Superintendent of Public Works unlimited personal use of a Village issued cell phone, presumably because he is expected to be available for emergencies during non-business hours.   In our opinion, during hours that the Superintendent is scheduled to work, the agency bears the burden of proving that disclosure of a particular phone number on a bill would constitute an unwarranted invasion of personal privacy.  Those items in our opinion likely bear upon the performance of one’s official duties and would, if disclosed, result in a permissible, not an unwarranted invasion of personal privacy.  Disclosure of records of telephone numbers reached during hours that the Superintendent is not scheduled to work, except calls made for work-related purposes, on the other hand, in our opinion would result in an unwarranted invasion of personal privacy.

            Although it may not be the case here, should an agency place restrictions on the use of a government issued cell phone, perhaps limiting the number of minutes that may be utilized for personal use or prohibiting personal use of the phone, in our view, the distinction between scheduled work hours and non-work hours would not apply.  In our opinion the agency would have no basis to deny access to records of telephone numbers contacted during non-work hours in that situation, unless, as discussed above, disclosure of the telephone number would result in an unwarranted invasion of personal privacy of the person contacted.

            We recognize that it may be time consuming for an agency to ascertain the effect of disclosure of every telephone number on a telephone bill.  Again, we emphasize that the agency has the burden of proving that disclosure of a record or a portion thereof would result in an unwarranted invasion of personal privacy.  While we believe it is helpful to have input from an employee with respect to the effect of disclosure of particular numbers, the employee’s characterization of a telephone number as “personal”, without more, in our opinion is insufficient for purposes of meeting that burden of proof

This opinion is intended to clarify and supercedes the opinion expressed in FOIL-AO-13753.

            On behalf of the Committee on Open Government, we hope that this is helpful. 

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

CSJ:jm

cc:  FOIL Officer
Alfred A. Gatta, Village Manager
Wayne Esannason, Village Attorney