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April 15, 1993

 

 

Mr. Terence Murphy
88-A-2495
Attica, N.Y. 14011-0149

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. Murphy:

I have received your letter of March 25. Enclosed are copies
of the advisory opinions that you requested.

In addition, you sought my comments concerning a decision to
withhold "telephone listings" for three employees of the Department
of Correctional Services, the phone log of a particular employee
pertaining to a certain date, and an employee's "time record" for
certain dates. The records sought were withheld under §87(2)(b),
(f) and (g) of the Freedom of Information Law, and because they
"are protected by Civil Rights Law Section 50(a)."

In this regard, I offer the following comments.

First, as I understand the nature of the records sought, it is
unlikely that §50-a of the Civil Rights Law would serve as a basis
for denial. That statute provides in brief that personnel records
pertaining to police and correction officers that "are used to
evaluate performance toward continued employment or promotion" are
confidential. It does not appear that an agency telephone
directory or telephone bills could be characterized as personnel
records subject to §50-a. Further, in a decision dealing
specifically with attendance records pertaining to a particular
police officer, it was found that those records are available and
that §50-a would not serve as a basis for denial. Since that
statute applies to police and correction officers, and since it was
found to be inapplicable with respect to police officer's
attendance records, it would be equally inapplicable in my opinion
with respect to attendance records pertaining to correction
officers [see Capital Newspapers v. Burns, 109 Ad 2d 292, aff'd 67
NY 2d 562 (1986)]. The subject of access to attendance records
will be considered more fully later in this opinion.

Second, 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.

With respect to a telephone bill or log, of potential
relevance is §87(2)(e), which permits an agency to 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."

For §87(2)(e) to be applicable, I believe that it must be found
initially that those records were "compiled for law enforcement
purposes". In my opinion, bills received from a telephone company,
for example, and the records reflective of payments of those bills,
could not be characterized as having been compiled for law
enforcement purposes, but rather, in the ordinary course of
business. Absent details concerning their content or function, it
is unclear whether the telephone records you seek could be
characterized as having been compiled for law enforcement purposes.

Insofar as those records could be considered as having been
compiled for law enforcement purposes, the capacity to deny access
is limited to the circumstances involving harmful effects of
disclosure described in subparagraphs (i) through (iv) of the
Freedom of Information Law. It is possible, however, that
disclosure of portions of the records sought might "identify a
confidential source or disclose confidential information relating
to a criminal investigation" in conjunction with subparagraph (iii)
of §87(2)(e). To that extent, portions of the records might
justifiably be withheld.

Aside from §87(2)(e), I believe that several of the grounds
for denial may be relevant to a determination of rights of access
to telephone logs or billing records. The extent to which those
provisions could properly be asserted would be dependent upon the
contents of the records and the effects of their disclosure.

Of significance is §87(2)(g), which authorizes an agency to
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.

Another ground for denial that is relevant 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 telephone in the
course of his or her official duties, records 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 the officer or employee serving as a
government official. However, there may be privacy considerations
concerning others identified in the records.

A third ground for denial may also be relevant. Specifically,
§87(2)(f) permits an agency to withhold records to the extent that
disclosure would "endanger the life or safety of any person." In
the context of the duties of correction officer's or other law
enforcement officials, §87(2)(f) might properly be asserted in a
variety of contexts.

Similar analyses might apply regarding an agency telephone
directory and attendance records. In this case of a directory, it
would appear that only §87(2)(f) could serve as a valid basis for
denial.

In the decision cited earlier concerning access to a police
officer's attendance records, in addition to rejecting §50-a of the
Civil Rights Law as a basis for denial, it was found, in essence,
that disclosure would result in a permissible rather than an
unwarranted invasion of personal privacy. Specifically, the
Appellate Division found that:

"One of the most basic obligation of any
employee is to appear for work when scheduled
to do so. Concurrent with this is the rights
of an employee to properly use sick leave
available to him or her. In the instant case,
intervenor had an obligation to report for
work when scheduled along with a right to use
sick leave in accordance with his collective
bargaining agreement. The taxpayers have an
interest in such use of sick leave for
economic as well as safety reasons. Thus it
can hardly be said that disclosure of the
dates in February 1983 when intervenor made
use of sick leave would constitute an
unwarranted invasion of privacy. Further, the
motives of petitioners or the means by which
they will report the information is not
determinative since all records of government
agencies are presumptively available for
inspection without regard to the status, need,
good faith or purpose of the applicant
requesting access..." [Capital Newspapers v.
Burns, 109 AD 2d 92, 94-95 (1985), aff'd 67
NY 2d 562 (1986)].

Insofar as attendance records or time sheets include reference
to reasons for an absence, it has been advised that an explanation
of why sick time might have been used, i.e., a description of an
illness or medical problem found in records, could be withheld or
deleted from a record otherwise available, for disclosure of so
personal a detail of a person's life would likely constitute an
unwarranted invasion of personal privacy and would not be relevant
to the performance of an employee's duties. A number, however,
which merely indicates the amount of sick time or vacation time
accumulated or used, or the dates and times of attendance or
absence, would not in my view represent a personal detail of an
individual's life and would be relevant to the performance of one's
official duties. Therefore, I do not believe that §87(2)(b) could
be asserted to withhold that kind of information contained in an
attendance record.

Finally, as requested, a copy of the determination of your
appeal will be returned to you.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

RJF:pb

cc: Anthony J. Annucci