December 20, 1995
Ms. Betty A. Loriz
22 Emerald Trail
Monroe, NY 10950
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.
Dear Ms. Loriz:
I have received your letter of November 25. Having requested the "home phone numbers for all Liberty School Board members", Mr. Pagnucco, the District's records access officer, wrote "approved" on your application with the following notation: "Please see Sull. Co. Telephone Directory." Nevertheless, you wrote that "Mr. Pagnucco was well aware that [you] requested these numbers because two of Liberty's board members have unlisted phone numbers and cannot be obtained by accessing the Sullivan County telephone directory."
It is your belief that board members "should be accessible to the public, and receiving phone calls was part of their job." Consequently, you asked whether a school district has "the right to withhold unlisted phone numbers for board members." In this regard, I offer the following comments.
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 (i) of the Law.
Second, in my view, only one of the grounds for denial is pertinent to the matter. Specifically, §87(2)(b) states that an agency may withhold records to the extent that 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].
From my perspective, the home telephone number of a public officer or employee is largely irrelevant to the performance of one's official duties. When a person or firm seeks to contact members of boards of education or perhaps town boards or city councils, I believe that they typically address their correspondence to the appropriate government office. Similarly, I believe that those persons are contacted by phone either at or through their government offices. While contacting a school board member through district offices may not be the most direct method of reaching that person, a message or notification can be given easily to the member. Moreover, in the situation in which a person chooses to have an unlisted phone number, he or she is likely suggesting, in essence, that disclosure of the number would, in his or her view, be unnecessarily intrusive or result in an unwarranted invasion of personal privacy.
I hope that the foregoing serves to enhance your understanding of the Freedom of Information Law.
Robert J. Freeman
cc: Anthony C. Pagnucco