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FOIL-AO-18125

                                                                                                May 26, 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 facts presented in your correspondence, unless otherwise indicated.

Dear

            This is in response to your request for an advisory opinion regarding application of the Freedom of Information Law to records requested from the Village of Rockville Centre.  Specifically, you questioned the Village’s authority to redact certain portions of cell phone bills and motor vehicle accident reports that it provided in response to your request.  Following our notification to the Village that you had made a request for an advisory opinion regarding the cell phone records, by correspondence dated April 13, 2010, the Village offered further justification for withholding portions of the records, a copy of which we enclose.   Both you and the Village made references in your correspondence to the contentious and litigious history between the Village and Autotech Collision, Inc., where you are employed.  It is our hope that this opinion will result in an amicable resolution of the issues that you have raised.

            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.  It is emphasized that the introductory language of §87(2) refers to the authority to withhold "records or portions thereof" that fall within the scope of the exceptions that follow. In our view, the phrase quoted in the preceding sentence evidences recognition on the part of the Legislature that a single record or report, for example, might include portions that are available under the statute, as well as portions that might justifiably be withheld. That being so, we believe that it also imposes an obligation on an agency to review records sought, in their entirety, to determine which portions, if any, might properly be withheld or deleted prior to disclosing the remainder.

            The Court of Appeals expressed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department [87 NY 2d 267 (1996)], stating that:

"To ensure maximum access to government records, the 'exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption' (Matter of Hanig v. State of New York Dept. of Motor Vehicles, 79 N.Y.2d 106, 109, 580 N.Y.S.2d 715, 588 N.E.2d 750 see, Public Officers Law § 89[4][b]). As this Court has stated, '[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld' (Matter of Fink v. Lefkowitz, 47 N.Y.2d, 567, 571, 419 N.Y.S.2d 467, 393 N.E.2d 463)" (id., 275).

            Just as significant, the Court in Gould repeatedly specified that a categorical denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the agency contended that complaint follow up reports, also known as "DD5's", could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however, wrote that: "Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree" (id., 276). The Court then stated as a general principle that "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, directing that:


"...to invoke one of the exemptions of section 87(2), the agency must articulate 'particularized and specific justification' for not disclosing requested documents (Matter of Fink v. Lefkowitz, supra, 47 N.Y.2d, at 571, 419 N.Y.S.2d 467, 393 N.E.2d 463). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v. Town of Webster, 65 N.Y.2d 131, 133, 490 N.Y.S. 2d, 488, 480 N.E.2d 74; Matter of Farbman & Sons v. New York City Health & Hosps. Corp., supra, 62 N.Y.2d, at 83, 476 N.Y.S.2d 69, 464 N.E.2d 437)" (id.).

            In the context of the situation described in the correspondence from you and the Village, it is not clear whether a "blanket denial" of access to the itemization of cell phone calls would be consistent with law.  Based on the direction given by the Court of Appeals in several decisions, the records must be reviewed for the purpose of identifying those portions of the records that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in Gould: "Indeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made" (id., 277; emphasis added).

            The Village relied on numerous provisions of the Freedom of Information Law to deny access to the itemized portions of the bills in their entirety, including §87(2)(a), (b), (e), (f) and (i). Taking the sections in order, we note first that §87(2)(a) states that an agency may withhold records that “are specifically exempted from disclosure by state or federal statute.” A statute, based upon judicial interpretations of the Freedom of Information Law, is an act of the State Legislature or Congress [see Sheehan v. City of Syracuse, 521 NYS 2d 207 (1987)], and it has been found that agencies’ regulations are not equivalent to statutes for purposes of §87 (2)(a) of the Freedom of Information Law [see Zuckerman v. NYS Board of Parole, 385 NYS 2d 811, 53 AD 2d 405 (1976); Morris v. Martin, Chairman of the State Board of Equalization and Assessment, 440 NYS 2d 365, 82 AD 2d 965, reversed 55 NY 2d 1026 (1982) ]. There are no statutes that prohibit the release of cellular phone bills of a public official or employee.  Therefore, in our opinion, §87(2)(a) of the Freedom of Information Law would not apply to permit the agency to deny access to such records.

            Next, the Village relied on §87(2)(b), and by reference, §89(2)(b) of the Freedom of Information Law, 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.  In our opinion, records of calls placed to towing companies from the scene of an accident would not constitute an unwarranted invasion of personal privacy.

            This is not to suggest, however, that all of the numbers appearing on every phone bill must be disclosed in every instance. Exceptions to the general rule of disclosure might arise if, for example, as it may be true in this case, a telephone is used in the performance of a police officer’s official duties to phone informants, or contact other police officers, in which cases, 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, as indicated by the Village.

            One of the exceptions to rights of access on which the Village relies, §87(2)(e), states that an agency may withhold records that:

"are compiled for law enforcement purposes and which, if disclosed, would:
i. interfere with law enforcement investigations or judicial proceedings;
ii. deprive a person of a right to a fair trial or impartial adjudication;
iii. identify a confidential source or disclose confidential information relating to a criminal investigation; or
iv. reveal criminal investigative techniques or procedures, except routine techniques and procedures."

            To characterize cell phone bills as having been compiled for law enforcement purposes, even though they could at some point be used in or pertinent to an investigation, would be inconsistent with both the language and the judicial interpretation of the Freedom of Information Law. The Court of Appeals has held on several occasions that the exceptions to rights of access appearing in §87(2) "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 be articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, M. Farbman & Sons v. New York City Health and Hospitals Corp., 62 NY 2d 75, 80 (1984); Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)]. Based upon the thrust of those decisions, §87(2)(e) should be construed narrowly in order to foster access.

            The last ground on which the Village relies to deny access to the itemized portions of the phone bills is §87(2)(i), which permits an agency to deny access to 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”

            For several years, that provision authorized an agency to withhold “computer access codes.”  Based on its legislative history, that provision was intended to permit agencies to withhold access codes which if disclosed would provide the recipient of a code with the ability to gain unauthorized access to information. Insofar as disclosure would enable a person with an access code to gain access to information without the authority to do so, we believe that such information could justifiably have been withheld. Section 87(2)(i) was amended in recognition of the need to guarantee that government agencies have the ability to ensure the security of their information and information systems.  In our opinion, disclosure of the particulars of phone calls made from a police officer’s cell phone would not enable a person to gain access to or in any way alter or adversely affect an agency’s electronic information or electronic information systems.  Accordingly, it is our opinion that the agency cannot justifiably rely on this exception to withhold portions of these records.

            In this instance, all of the information regarding the particulars of the individual phone calls was deleted in its entirety. 

            The judicial decision on which the Village relies is Wilson v. Town of Islip [578 NYS2d 642, 179AD2d 763 (1992)], in which one of the categories of the records sought involved bills involving the use of cellular telephones.  In that decision, it was found that:

"The petitioner requested that the respondents provide copies of the Town of Islip's cellular telephone bills for 1987, 1988 and 1989. The court correctly determined that the respondents complied with this request by producing the summary pages of the bills showing costs incurred on each of the cellular phones for the subject period. The petitioner never specifically requested any further or more detailed information with respect to the telephone bills. In view of the information disclosed in the summary pages, which indicated that the amounts were not excessive, it was fair and reasonable for the respondents to conclude that they were fully complying with the petitioner's request"[578 NYS2d 642, 643, 179 AD2d 763 (1992)].

            The foregoing represents the entirety of the Court's decision regarding the matter; there is no additional analysis of the issue.  Because your request clearly indicated your desire to access more than aggregate information, we believe that this case is not determinative here.

            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, but, again we emphasize that, if challenged, the agency has the burden of proving that the requested material qualifies for the exemption.

            Finally, §89(6) of the Freedom of Information Law states that if records are available under some other provision of law or by means of judicial interpretation, the grounds for denial appearing in §87(2) cannot be asserted.  Of potential relevance to the matter of access to the traffic accident reports is §66-a of the Public Officers Law, which was enacted in 1941 and states that:

"Notwithstanding any inconsistent provisions of law, general, special of local or any limitation contained in the provision of any city charter, all reports and records of any accident, kept or maintained by the state police or by the police department or force of any county, city, town, village or other district of the state, shall be open to the inspection of any person having an interest therein, or of such person's attorney or agent, even though the state or a municipal corporation or other subdivision thereof may have been involved in the accident; except that the authorities having custody of such reports or records may prescribe reasonable rules and regulations in regard to the time and manner of such inspection, and may withhold from inspection any reports or records the disclosure of which would interfere with the investigation or involved in or connected with the accident."

            The Freedom of Information Law is consistent with the language quoted above, for while accident reports are generally available, §87(2)(e)(i) of that statute states in relevant part that records compiled for law enforcement purposes may be withheld to the extent that disclosure would "interfere with law enforcement investigations or judicial proceedings." Therefore, unless disclosure would interfere with a criminal investigation, an accident report would be available to any person, including one who had no involvement in an accident.
On behalf of the Committee on Open Government, we hope that this helps to clarify your understanding of the Freedom of Information Law.

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director


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cc:  A. Thomas Levin