FOIL AO 19656
April 3, 2018
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, except as otherwise indicated.
We are in receipt of your letter dated April 2, 2018 regarding the manner in which the New Paltz Central School District responded to your Freedom of Information Law (FOIL) request for the “phone number associated with all cell phones paid for with district funds and provided to Superintendent Maria Rice for her use.”
First, I note that FOIL governs access to existing records and that §89(3) of that statute provides in relevant part that an agency is not required to create a record in response to a request for information. Similarly, nothing in FOIL requires and agency to supply information in response to questions. Upon review of your “Application for Public Access to Records,” it appears that, instead of requesting access to records, you were requesting that the District supply information. The District, however, did not object to your request and was willing to treat your request for information as a request for records.
FOIL is based on a presumption of access. 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 (o) of the Law. Regulations promulgated by the Committee on Open Government require that the “Denial of access shall be in writing stating the reason therefor.” In response to your request, the District’s records access officer advised that “[a]ccording to an advisory opinion from the State of New York Department of State Committee on Open Government, the cell phone number you requested in your FOIL does not have to be provided and therefor will be withheld.” In my opinion, the reference to “an advisory opinion” prepared by the Committee, without a specific reference to the statutory ground for denial relied upon, is insufficient to comply with law and regulation.
Section 89(4)(a) of FOIL states in relevant part that:
"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought." (emphasis added)
In my view, the District’s Appeal Officer did not “fully explain” the reasons for further denial. The advisory opinion relied upon by the District is not directly on point because it relates to the privacy interest related to home telephone numbers and cell phone numbers of members of the public, as opposed to the telephone numbers of public employees.
Although §87(2)(b) of FOIL authorizes an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy," 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); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, 67 NY2d 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].
Some public employees and officials are required to carry a publicly owned or paid for cell phone so that they can be reached by other staff when out of the office. The cell phones are used when travelling during normal business hours and are generally brought home so that the employee or official can be reached outside of normal business hours in an emergency. The cell phone is generally not the public’s primary means of communicating with that employee. For example, if a member of the public wishes to speak with Superintendent Rice, the phone number for her office is available on the District’s website. If the general public were to be provided with the Superintendent’s cell phone number, it is likely that she would be inundated with calls at all hours of the day, including non-business hours, weekends, and holidays. Such disruptions would impair the Superintendent’s ability to perform her job effectively, could prevent her from being reached by District personnel in cases of a true emergency, and would likely lead to a significant reduction in non-work hours that could be spent with family and friends or pursuing recreational activities. In my opinion, for the reasons mentioned, disclosure of a record containing the Superintendent’s cell phone number would constitute an unwarranted invasion of personal privacy.
I hope you find this information useful.
cc: Superintendent Maria Rice