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October 22, 1993

 

 

Hon. Charles D. Cook
Member of the Senate
P.O. Box 351
Delhi, NY 13753

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,
except as otherwise indicated.

Dear Senator Cook:

I have received your letter of October 14 in which you sought
my views concerning a matter relating to the Freedom of Information
Law.

According to your letter, in response to a request for school
telephone bills by a resident of the Greenville School District,
he was informed that "he could have the bills but that the actual
phone numbers would be blocked out." You wrote that "[s]ince the
purpose of the inquiry was to determine whether private telephone
calls were being made from school telephones, that policy pretty
much defeats the whole purpose of the inquiry."

In this regard, I offer the following comments.

First, as you are aware, all agency records are subject to
rights conferred by the Freedom of Information Law, and §86(4) of
that statute defines the term "record" expansively to include:

"any information kept, held, filed, produced,
reproduced by, with or for an agency or the
state legislature, in any physical form
whatsoever including, but not limited to,
reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals,
pamphlets, forms, papers, designs, drawings,
maps, photos, letters, microfilms, computer
tapes or discs, rules, regulations or codes."

It is noted that the Court of Appeals has construed the definition
as broadly as its specific language suggests [see e.g., Westchester
Rockland Newspapers v. Kimball, 50 NY2d 575 (1980) and Washington
Post v. Insurance Department, 61 NY 2d 557 (1984)].

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 (i) of the Law. It is emphasized
that the introductory language of §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.

Second, in my view, three of the grounds for denial may be
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.

If phone records are generated by the District, I believe that
the records 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.
If the records were prepared by a phone company and sent to the
District, they would not fall within §87(2)(g), because the phone
company would not be an agency.

A second 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.
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. 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, 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 of the District who
uses a District phone.

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 phone numbers appear on a bill, those numbers do not
necessarily indicate who in fact was called or who picked up the
receiver in response to a call. An indication of the phone number
would disclose nothing regarding the nature of a conversation.
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 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 phone
bill must be disclosed in every instance. Exceptions to the
general rule of disclosure might arise if, for example, a telephone
is used to contact recipients of public assistance, informants in
the context of law enforcement, or 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 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 my view, the numbers 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.

In the context of a school district's phone bills, a third
ground for denial, §87(2)(a) of the Freedom of Information Law,
would be relevant, at least with respect to some of the bills.
Section 87(2)(a) pertains to records that are "specifically
exempted from disclosure by state or federal statute." One such
statute is the Family Educational Rights and Privacy Act (20 U.S.C.
§1232g), which is commonly known as the "Buckley Amendment". In
brief, the Buckley Amendment applies to all educational agencies or
institutions that participate in funding or grant programs
administered by the United States Department of Education. As
such, the Buckley Amendment includes within its scope virtually all
public educational institutions and many private educational
institutions. The focal point of the Act is the protection of
privacy of students. It provides, in general, that any "education
record", a term that is broadly defined, that is personally
identifiable to a particular student or students is confidential,
unless the parents of students under the age of eighteen waive
their right to confidentiality, or unless a student eighteen years
of over similarly waives his or her right to confidentiality.
Further, the federal regulations promulgated under the Buckley
Amendment define the phrase "personally identifiable information"
to include:

"(a) The students name;
(b) The name of the student's parents or
other family member;
(c) The address of the student or student's
family;
(d) A personal identifier, such as the
student's social security number or
student number;
(e) A list of personal characteristics
that would make the student's
identity easily traceable; or
(f) Other information that would make
the student's identity easily
traceable" (34 CFR §99.3).

Having contacted the Family Policy Compliance Office, the entity
within the federal Department of Education that oversees the
Buckley Amendment, and describing the situation, it was advised
that the Buckley Amendment would be implicated in ascertaining
public rights of access to the records in question.

If a person employed by the District routinely and as a part
of his or her official duties contacts parents of students by
telephone, those portions of a phone bill that could identify
parents and, therefore, students, would in my opinion be exempted
from disclosure. Stated differently, under the federal regulations
cited above, if a phone number could identify a parent of a
student, a disclosure of that number would likely "make the
student's identity easily traceable." To that extent, I believe
that the Buckley Amendment would forbid disclosure.

A problem involves the ability of District officials to know
which numbers on a bill involve calls made to parents, especially
when the calls are local, and there may be no way of knowing, based
upon a review of numbers called, which pertain to contact with
parents, as opposed to others.

In order to comply with the Buckley Amendment, for those
records reflective of calls made by staff who routinely and who, as
part of their duties, contact parents of students, it is suggested
that the last four digits appearing in a local phone number might
be deleted, unless it is known that certain phone numbers do not
involve contact with parents. In the case of reference to long
distance calls, as well as 800 and 900 numbers, I believe that
reference to those calls should be disclosed in their entirety,
unless it could clearly be asserted that a particular long distance
call or calls involved contact with the parent of a student.
Similarly, those records of calls made by staff who do not
telephone parents of students routinely and as part of their
official duties in my view must be disclosed. In those instances,
I do not believe that any basis for denial could justifiably be
asserted.

I recognize that the foregoing comments and suggestions might
not, if implemented, entirely achieve the goal of the person who
contacted you. While I believe and the courts have held that the
Freedom of Information Law should be construed expansively, in this
case, a federal statute, the Buckley Amendment, essentially forbids
a school district from disclosing information that could identify
students. I have attempted in my comments to recognize and give
effect to the public policy considerations reflected in both the
Freedom of Information Law and the federal statute concerning
confidentiality.

I hope that I have been of some assistance. If you would like
to discuss the matter, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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