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March 11, 1993

Mr. John J. Sheehan
P.O. Box 604
Binghamton, NY 13902

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 Mr. Sheehan:

I have received your letter of March 6 and the correspondence
attached to it.

You have sought an advisory opinion concerning a request for
bills involving the use of a fax machine by officers and employees
of the City of Binghamton. The bills were disclosed, except those
portions indicating the fax numbers to which the transmissions were
made. You have questioned the propriety of the deletion of those
numbers.

In this regard, 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 section 87(2)(a) through (i) of the
Law. The denial appearing in §87(2) refers to the capacity to
withhold "records or portions thereof" that fall within the scope
of the grounds for denial that follow. In my opinion, the phrase
quoted in the preceding sentence indicates that a single record may
be both accessible or deniable in whole or in part. I believe that
the quoted phrase also imposes an obligation on agency officials to
review records sought, in their entirety, to determine which
portions, if any, may justifiably be withheld.

In my view, a number of the grounds for denial may be likely
relevant to the issue.

Section 87(2)(g) states that an agency may withhold records
that:

"are inter-agency or intra-agency materials
which are not:

i. statistical or factual tabulations or
data;

ii. instructions to staff that affect the
public;

iii. final agency policy or determinations;
or

iv. external audits, including but not
limited to audits performed by the comptroller
and the federal government..."

It is noted that the language quoted above contains what in effect
is a double negative. While inter-agency or intra-agency materials
may be withheld, portions of such materials consisting of
statistical or factual information, instructions to staff that
affect the public, final agency policy or determinations or
external audits must be made available, unless a different ground
for denial could appropriately be asserted. Concurrently,
those portions of inter-agency or intra-agency materials that are
reflective of opinion, advice, recommendation and the like could in
my view be withheld.

I believe that the records in question could be characterized
as intra-agency materials. Nevertheless, in view of their content,
they would apparently consist of statistical or factual information
accessible under §87(2)(g)(i) unless another basis for denial
applies. As such, §87(2)(g) would not, in my opinion, serve as a
basis for denial.

Another potentially relevant ground for denial is §87(2)(b),
which permits an agency to withhold records to the extent that
disclosure would constitute "an unwarranted invasion of personal
privacy".

Although the standard concerning privacy is flexible and may
be subject to conflicting interpretations, the courts have provided
substantial direction regarding the privacy of public employees.
First, it is clear that public employees enjoy a lesser degree of
privacy than others, for it has been found in various contexts that
public employees are required to be more accountable than others.
Second, with regard to records pertaining to public employees, the
courts have found that, as a general rule, records that are
relevant to the performance of a public employee' s official duties
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 records are irrelevant to the performance of one's
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].

When a public officer or employee uses a fax machine in the
course of his or her official duties, bills involving the use of
the machine 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 the 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.

There is but one decision of which I am aware that deals with
the issue. In Wilson v. Town of Islip, 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 NYS 2d
642, 643, ___ AD 2d ___ (1992)].

The foregoing represents the entirety of the Court's decision
regarding the matter; there is no additional analysis of the issue.
I believe, however, that a more detailed analysis is required to
deal adequately with the matter.

When fax numbers appear on a bill, those numbers do not
necessarily indicate who in fact was received the transmission. An
indication of the phone number would disclose nothing regarding the
nature of a conversation in the case of a telephone call or the
information transmitted in the case of a fax communication. In
short, I believe that the holding in Wilson is conclusory in nature
and lacks a substantial analysis of the issue.

This is not to suggest that the numbers appearing on a bill
must be disclosed in every instance. Exceptions to the general
rule of disclosure might arise if, for example, a fax machine is
used in a law enforcement context or, for example, to transmit
information to a certain class of individuals, i.e., persons
seeking certain health services. It has been advised in the past
that if a government employee contacts those classes of persons as
part of the employee's ongoing and routine duties, there may be
grounds for withholding numbers listed on a bill. In my view, the
numbers could likely be deleted in those circumstances to protect
against an unwarranted invasion of personal privacy due to the
status of those contacted. Similarly, if a law enforcement
official phones informants or is engaged in an investigation,
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.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Linda Kingsley