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March 17, 1995

 

 

Mr. James F. Sgroi
247 W. Main Street
Frankfort, NY 13340

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, unless otherwise indicated.

Dear Mr. Sgroi:

I have received your letter of February 19 and various materials related to it.

You wrote that you requested cellular phone bills of employees of the Village of Frankfort, including those portions indicating the numbers called. Because "the telephone numbers emanating from the cellular telephone have been blackened", and because credit card records had been requested and withheld, you questioned the propriety of the response.

Following the receipt of your letter of February 18 and his contact with me, Mayor Fred Pumilio wrote to you on February 28 and significantly altered the position initially taken by the Village. The Mayor indicated that the refusal to release credit card records was "unintentional" and that all such records would be made available, including receipts. In considering the use of cellular phones, he wrote that they "are held and exchanged by various managers and/or foreman and used for each to communicate with the other and their central offices while in the field and unavailable to be contacted through the regular listed phone numbers", thereby allowing "greater efficiency and response time internally and in response to developing situations", as well as "almost instant response between departments in the event of emergencies." The Mayor added that the "integrity and efficiency of this system is critical in maintaining our ability to react to and efficiently and effectively deal with emergency situations", and that the numbers are private and given to staff only on a "need to know basis." He contended that release of the cellular telephone numbers "to unauthorized and unnecessary individuals could only interfere with the use of this cellular telephone system as a fast and efficient private internal communications system." Consequently, he wrote that the cellular phone numbers be withheld but the numbers could would generally be available.

In terms of the Freedom of Information Law, the only basis for denial of access to the cellular phone numbers in my view would be §87(2)(f). That provision permits an agency to withhold records to the extent that disclosure would "endanger the life or safety of any person." As I understand the Mayor's comments, if the numbers of the cellular phones are publicly disclosed, they could be used inappropriately and preclude Village officials from being reached in emergency situations. In my opinion, insofar as the cellular phones are use by Village employees whose services may be needed in the event of emergencies, a denial of access to the cellular phone numbers would appear to be justifiable under §87(2)(f).

The Mayor also wrote that:

"...it is our concern to preserve the privacy of those individuals or organizations with whom we deal with. On several occasions with engineers, alternate counsel, buyers and suppliers as well as certain officials in other governments and inter-government organizations we have been given private unlisted telephone numbers to be able to contact these people either through their private lines at their offices, on their cellular phones or at their residence through these unlisted numbers. It is our opinion that the federal and state FOI laws do not compel us to break a trust with those offices and individuals who have chosen to entrust to us there private numbers and therefore, I instruct that these numbers be blocked our by our staff before providing you the records you requested (emphasis added by the Mayor).

"Initially we blocked out all numbers so as not to have each individual take the time to review their records. It is our opinion that the numbers called are not significant to your request but if you feel that they are part and parcel of the information you need and feel entitled to we will take the time and block out only those numbers that we feel you are not entitled to."

It is noted that there is no provision of federal law of which I am aware that would govern in this situation. Although there is a federal Freedom of Information Act (5 U.S.C. §552), that statute applies only to records of federal agencies. Nevertheless, based on the Mayor's comments, the provision in the New York Freedom of Information Law relevant to the matter is §87(2)(b), which enables an agency to withhold records insofar as disclosure would constitute "an unwarranted invasion of personal privacy." In addition, §89(2)(b) includes a series of examples of unwarranted invasions of personal privacy. In my view, the provisions in the Freedom of Information Law pertaining to privacy are intended to deal with natural persons, rather than entities, such as corporations or other business or commercial establishments. Relevant to an analysis of the matter is Article 6-A of the Public Officers Law, the Personal Privacy Protection Law. That statute pertains only to state agencies, but it relates to the Freedom of Information Law. When the Personal Privacy Protection Law is read in conjunction with the Freedom of Information Law, it is clear that the protection of privacy as envisioned by those statutes is intended to pertain to personal information about natural persons [see Public Officers Law, §§92(3), 92(7), 96(1) and 89(2-a). Therefore, insofar as the information at issue would identify entities, such as business establishments, rather than natural persons, I do not believe that those records could be withheld based upon considerations of privacy. In a decision rendered by the Court of Appeals that focused upon the privacy provisions, the court referred to the authority to withhold "certain personal information about private citizens" [see Matter of Federation of New York State Rifle and Pistol Clubs, Inc. v. The New York City Police Department, 73 NY 2d 92 (1989)]. In view of that statement, again, I believe that the authority to withhold the information based upon considerations of privacy is restricted to those situations in which the information pertains to natural persons.

Further, there are judicial decisions indicating that the provisions involving the protection of personal privacy do not ordinarily apply when records relate to persons acting in a business or professional capacity. For instance, one involved a request for the names and addresses of mink and ranch fox farmers from a state agency (ASPCA v. NYS Department of Agriculture and Markets, Supreme Court, Albany County, May 10, 1989). In granting access, the court relied in part and quoted from an opinion rendered by this office in which it was advised that "the provisions concerning privacy in the Freedom of Information Law are intended to be asserted only with respect to 'personal' information relating to natural persons". The court held that:

"...the names and business addresses of individuals or entities engaged in animal farming for profit do not constitute information of a private nature, and this conclusion is not changed by the fact that a person's business address may also be the address of his or her residence. In interpreting the Federal Freedom of Information Law Act (5 USC 552), the Federal Courts have already drawn a distinction between information of a 'private' nature which may not be disclosed, and information of a 'business' nature which may be disclosed (see e.g., Cohen v. Environmental Protection Agency, 575 F Supp. 425 (D.C.D.C. 1983)."

In another more recent decision, Newsday, Inc. v. New York State Department of Health (Supreme Court, Albany County, October 15, 1991)], data acquired by the State Department of Health concerning the performance of open heart surgery by hospitals and individual surgeons was requested. Although the Department provided statistics relating to surgeons, it withheld their identities. In response to a request for an advisory opinion, it was advised by this office, based upon the New York Freedom of Information Law and judicial interpretations of the federal Freedom of Information Act, that the names should be disclosed. The court agreed and cited the opinion rendered by this office.

From my perspective, insofar as the records sought consist of business phone numbers called by means of cellular phones, they should be made available. Disclosure of those numbers do not independently reveal anything "personal" about an individual. Moreover, when a phone number appears on a record, there is no indication that it is unlisted. On the other hand, if it is known that a phone number pertains to one's residence and is "private" or unlisted, I believe that it could be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy.

In good faith and in an effort to be fair, I note that a copy of this response will be sent to Mayor Pumilio.

I hope that I have been of some assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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cc: Hon. Fred Pumilio, Mayor