Accessing Government Phone Records
Q: I am researching a public records request. It is my understanding, post Prop 59, that the public paid for cell phone and desk phone records of elected officials are available for review by citizens/news organizations, etc. and that privilege can not be invoked by a municipality or local government to redact the incoming and outgoing phone numbers from those records. Is that correct? If so – where has this been done before? Other than the 2005 San Diego City Attorney opinion, are there more legal opinions on this out there.
A: At least one court, Holman v. Superior Court of San Diego County, 31 Med. L. Rptr. 1993 (2003), determined that there is no absolute privilege exempting private identifying information such as cellular and land line telephone numbers. The court determined, however, that such information could be exempted from disclosure under the California Public Records Act (“CPRA”) if it is found that the public interest in nondisclosure outweighs the public interest in disclosure – the balancing analysis found in section 6255 of the CPRA. It appears, therefore, that disclosure of such identifiable information will depend on the facts of each particular case.
In the Holman case, a media entity sought disclosure of email records containing email addresses, and cellular and landline telephone records of an employee that had recently been hired and who was allegedly connected with an entity with whom the agency was engaged in a controversial project. The court of appeals first determined that there was “no absolute privilege exempting private identifying information from disclosure” under section 6254, subdivision (k), which exempts from disclosure any information that is exempt pursuant to state or federal law. The court went on to state, however, that personal information protected by California’s constitutionally guaranteed right of privacy can be exempted from CPRA disclosure under the balancing test set forth in section 6255 — the “catch-all” provision.
With respect to the “catch-all” analysis on email addresses, the court weighed the interest furthered by disclosure (i.e., the activities of a person hired as a staff member of the agency for which she may have had no prior experience, and who was allegedly connected to an entity with whom the agency was then engaged in a controversial project) against the interests furthered by nondisclosure (i.e., the chilling effect associated with revealing email addresses of those the employee dealt with), and determined that the public interest served by not disclosing the email information does not clearly outweigh the public interest served by disclosure.
With respect to telephone numbers, the court determined that under the facts of this case, the parties who called or were called by the employee in her governmental capacity had a correspondingly diminished interest in retaining the privacy of those contacts, and the limited scope of the disclosure here — the telephone numbers of those contacting a specific governmental employee for a limited period of time — will have a de minimus chilling impact on future communications. Because the disclosure here sought “appears necessary (or even indispensable) to furthering the particularized governmental accountability concerns,” the reasons supporting nondisclosure, the court concluded, do not clearly outweigh the substantial public interest in ensuring governmental accountability. The court exempted from disclosure the land line phone records only because the bills reflecting the employee’s calls were not limited to the employee’s land line calls but included calls placed by others who used that same land line. Thus, according to the Holman case, whether disclosure of telephone records is appropriate depends on the particular facts of the case.
With respect to your request for additional legal opinions on this subject, I am unaware of any other authority on this specific issue.