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Friday, July 15, 2011

Disclosing the unlisted telephone numbers called by public officials pursuant to a FOIL request


Disclosing the unlisted telephone numbers called by public officials pursuant to a FOIL request
Matter of Hawley v Village of Penn Yan, 35 A.D.3d 1270

This case arose when Robert Hawley submitted a Freedom of Information [FOIL] request to obtain a list of all of the telephone calls made and received by the Mayor of the Village of Penn Yan for a two-month period on a cellular telephone paid for the Village.

Responding to his request, the Village provided Hawley with the list of all of the mayor’s cell phone calls for the period requested but one. It did not provide that one telephone number because it was an “unlisted” number.

In the litigation that followed, the Appellate Division said that Supreme Court had “properly granted [Hawley’s] petition only in part, granting [Hawley] "the right to examine all requested telephone records, excluding unlisted wired and wireless numbers."

The general standard applied by the courts: "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government."

The basic concept underlying FOIL -- all public documents are available to the public. However, an agency may, but is not required to, deny public access to documents if such records or documents fall within one or more of the "exemptions from disclosure" allowed under FOIL. Unless access or disclosure is otherwise specifically prohibited by law, the basic rule is that only those records that fall within the statutory exceptions may be withheld from the public if the custodian of such records, as a matter of exercising discretion, elects to do so.

In addition, a public body may exercise its discretion and apply the exemption to disclosure where disclosure “would constitute an unwarranted invasion of personal privacy" (Public Officers Law §87[b]).

According to the decision, the question to be resolved in the context of this appeal was "What constitutes an unwarranted invasion of personal privacy as measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities?”

The Appellate Division said that this determination requires “balancing the competing interests of public access and individual privacy." In the court’s view, a situation in which a person chooses to have an unlisted phone number suggests that disclosure of the number would, in that individual’s view, be unnecessarily intrusive or result in an unwarranted invasion of personal privacy, citing NY Dept. of State Commission on Open Government, Advisory Opinions 9197 and 8740.

The court decided that in this instance FOIL did not require the disclosure of the unlisted telephone numbers Hawley asked to have revealed.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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