Sunrise over V.A. Capitol.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
C
OMMONWEALTH OF VIRGINIA


AO-04-12

October 17, 2012

Kevin E. Martingayle, Esq.
Va. Beach, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your electronic mail of September 5, 2012.

Dear Mr. Martingayle:

You have asked whether certain telephone billing records of a member of a public university board of visitors would be public records subject to disclosure under the Virginia Freedom of Information Act (FOIA). As background, you related that the telephone billing records in question would be prepared by the telephone company, sent to the member for payment, paid by the member personally, and not reimbursed by the public body. The telephone billing records would be in the possession of the member once the bill is sent by the service provider and received by the member. The telephone billing records in this instance would not be in the possession of the public body. For purposes of this opinion, you stated that some of the calls made by the member would have been for the purpose of transacting public business. It is presumed that the telephone billing records do not reflect the content of the calls made, but do reflect the telephone numbers called, the time, date, and duration of the calls, and the amount charged for such calls. The telephone billing records would reflect all calls made on the telephone during the billing period without differentiating between calls made for personal purposes or purposes of public business. You indicated that in researching the matter, you had not found any Virginia court cases or opinions directly on point.

In considering this matter, we must keep in mind that the policy of FOIA set forth in 2.2-3701 is to ensure

the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees...The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government....The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.

The crux of this matter is whether the telephone billing records are public records subject to FOIA. The term public records is defined in 2.2-3701 to include all writings and recordings ... however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. The definition was amended in 2011 to also state what records are not public records: Records that are not prepared for or used in the transaction of public business are not public records.1 In this instance, the facts presented state that the telephone billing records are records in the possession of a member of a public body. Therefore the question that remains is whether the telephone billing records, once received by the member from the service provider, are possessed by the board member in the transaction of public business, in which case they would be public records subject to FOIA, or instead are not public records because they are not prepared for or used in the transaction of public business.

In researching this issue, I found no opinions directly on point from the Virginia courts, the Office of the Attorney General, or this office. The Virginia Supreme Court has addressed the issue of whether the Governor's telephone billing records are subject to disclosure under FOIA, and decided that they are not.2 In its plurality opinion, the Court found that if such records were required to be released, that release would unconstitutionally interfere with the ability of the Governor to execute the duties of his office and that the records must therefore be exempt under former Code subdivision B 4 of 2.1-342 as memoranda, working papers and correspondence held ... by the office of the Governor.3 The Court has followed similar reasoning based on constitutional considerations in later cases holding that records held by a Commonwealth's Attorney and the State Corporation Commission are not subject to FOIA.4 However, the facts you present concern a member of a board of visitors of a public university. While this office cannot opine on matters outside of FOIA, including constitutional issues, note that the boards of visitors of the public universities in the Commonwealth are creatures of statute set forth in Title 23 of the Code. Their authority is derived from the General Assembly, not from the constitution, and the separation of powers issues raised in prior cases therefore would not appear to be controlling under the facts you present. Note also that the exemption formerly found at subdivision B 4 of 2.1-342, now codified at subdivision 2 of 2.2-3705.7, which was found to exempt the Governor's telephone records, only applies to certain officials identified in the exemption. The exemption does not include members of the boards of visitors of public institutions of higher education. Additionally, the Court held that the Governor's telephone billing records were exempt as memoranda, but the current language of the exemption now only exempts working papers and correspondence. Also note that in this case the public body was paying for the telephone service and was in possession of the telephone billing records, whereas under the facts you presented the member pays the bills in his personal capacity and the public body does not possess any copies of the billing records. Therefore the Governor's telephone billing records were public records that the Court held were exempt from disclosure. Under the facts you present, it does not appear that the same exemption would apply, but the question remains whether the board member's telephone billing records, paid in his personal capacity, are public records subject to FOIA due to their content.

The only other related precedent in Virginia of which I am aware is a 1976 opinion of the Attorney General which concluded that records of telephone calls charged to the Commonwealth on credit cards issued to members of the General Assembly were subject to disclosure under FOIA.5 In that instance, however, the records at issue were documents or reports made and received in pursuance of law by the Clerk of the Senate and the Clerk of the House of Delegates....the same records [were] made and received by [the Virginia Public Telecommunications Council. The Virginia Public Telecommunications Council was described therein as the agency charged with the duty of operating [the State Controlled Administrative Telephone System] and providing telecommunications facilities and services throughout the State.6 Therefore, unlike the present facts, the records at issue in that opinion were clearly prepared by public agencies and officials for use in the transaction of public business, and therefore would be public records subject to FOIA.

I am also aware of two recent opinions from the Supreme Court of Colorado and a North Carolina superior court that address similar issues. While not controlling in Virginia, they help demonstrate the competing policy considerations involved. In Denver Post Corp. v. Ritter,7 the Supreme Court of Colorado affirmed the decision of two lower courts that the Colorado Governor's personal cellular telephone records were not public records subject to disclosure under the Colorado Open Records Act (CORA).8 The Court first observed that the definition of public record under CORA included all writings made, maintained or kept by the state...for use in the exercise of functions required or authorized by law.9 In considering the facts to which the parties had stipulated, the Court agreed with the trial court below in finding that

There are simply no allegations in the complaint - not even one - from which any fact finder could conclude that these billing records were kept and maintained by Defendant for any purpose other than the purpose for which all people, governors and non-governors alike, keep bills: namely, to pay them, and perhaps also to make sure the charges are correct.10

The Court concluded that the records were not likely public records under CORA based on the facts that the telephone billing records were not made, kept, or maintained in the Governor's official capacity or for official use, but instead were kept only for the purpose of paying the bills.11 The dissent in Ritter indicated that the majority decision was contrary to CORA's purpose of providing public access, stating that the majority creates an incentive for public officials to shield records of phone conversations about official business by intermingling them with records of personal calls, essentially affording the opportunity to purchase an unwritten exception to CORA for the price of a monthly cell phone plan.12 A recent order of a North Carolina court13 considered whether personal cell telephone billing statements of a public university football coach that included items related to the coach's public business would be subject to disclosure under North Carolina's Public Records law.14 The judge explicitly rejected the decision of the majority in Ritter, stating as follows:

I have read the Governor Ritter decision of the Supreme Court of Colorado and with all due respect for the Court, do not believe that our government officials, including University officials and coaches, are entitled to use the personal cell phone "dodge" to evade the North Carolina Public Records law. If Chancellors of the [University of North Carolina] system are doing this thinking that they can avoid public scrutiny of their cell phone records by using their personal cell phones to conduct public business, they need to re-think their decision. Making such a decision in the first place to avoid the public records law, in my view, raises an issue of sound judgment.

The judge went on to order an in camera review of the telephone billing records in question and to state that a protective order for the coach's private calling records for non-public/job related calls is appropriate.

The facts you present are that a member of a board of visitors has a private cellular telephone which is used for both personal and public business, and he receives monthly billing statements from the service provider that reflect that use. Looking at these facts in light of FOIA's definition of public records, it is clear that the member of the board of visitors is a public official, and that he is in possession of the telephone billing records once received from the service provider, but it does not appear that he is in possession of those records in the transaction of public business. Instead, like the Governor in the Colorado case, it appears that the telephone billing records were prepared by a private company in order to receive payment for the cellular telephone service provided, and are in the possession of the board member solely for the purpose of paying for that service. In other words, the telephone billing records were prepared by a private entity (the service provider) for a commercial purpose (the payment of a bill for services rendered) and merely happen to reflect the phone numbers called, some of which may have been for public purposes. However, the telephone billing records do not reflect the content of the calls or even the fact of whether a conversation occurred (for example, there may have been no answer, or an answer by voice mail). Looking at the issue in another way, the board member does not receive the telephone bill because he is a board member, nor does he use the telephone bills in his work as a board member. He receives the bill and uses it only as part of a commercial transaction with a private company. While we appreciate the countervailing policy arguments expressed by the Colorado dissent and the North Carolina court, under the definition of public records in Virginia FOIA as amended last year, a record that was not prepared for or used in the transaction of public business is not a public record. That definition necessarily leads to the conclusion that the telephone billing records as you have described them are not public records subject to FOIA. For the reasons stated above, namely that the telephone bill is not paid with public funds, it is only an indicia that a call was made (it does not reveal the contents of the call or who made it), and it was prepared by the service provider for payment, it was not prepared for or used in the transaction of public business and is not a public record subject to FOIA. As a question of policy, it is ultimately up to the General Assembly to decide whether the scope of FOIA should reach telephone billing records that are paid by public officials and employees personally, but may reflect calls made in their capacity as public officials and employees.

However, it is worth noting that a different conclusion is easily reached under different factual circumstances. As you noted in requesting this opinion, if the board member had turned over the same telephone bills to the university for reimbursement, or if the university paid for the telephone service and received the bills directly, then the public body itself would possess the bills in the transaction of its public business and they would, in those instances, be public records subject to FOIA. The distinction in those situations is that public money is being used to pay the bills, and so the bills themselves reflect that transaction of public business (the payment). By contrast, under the facts you present, the payment of the bill by the member personally did not involve public funds and did not reflect the transaction of public business. Instead, we had to examine the contents of the telephone billing records in making the determination whether those records are public records. A telephone number, by itself, is not the transaction of public business, but is only an indicator that a call was made. Knowing only the number called, and the time and duration of the call, does not reveal who made the call, who answered the call (if anyone), or whether a conversation ensued. The content of a telephone billing record, is only this basic information without context, and is not, by itself, the transaction of public business. However, I would note that if a public body or its officers, employees or agents were to record, make a transcript of, or take notes about a telephone call in the transaction of public business, then those records would be public records subject to FOIA, regardless of what telephone was used, because they were prepared by the public body or its officers, employees or agents in the transaction of public business, which fits squarely within the definition of public records.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

12011 Acts of Assembly, c. 242.
2Taylor v. Worrell Enterprises, Inc., 242 Va. 219, 409 S.E.2d 136 (1991).
3Id. 242 Va. at 224, 409 S.E.2d at 139-140 (plurality decision). .
4See Christian v. State Corporation Commission, 282 Va. 392, 400, 718 S.E.2d 767, 771 (2011)("We have previously determined that the Commonwealth Attorney's Office is not a "public body" under the VFOIA because, "[a]s used in the [V]FOIA, the terms 'authority' and 'agency' clearly refer to entities to which responsibility to conduct the business of the people is delegated by legislative or executive action," while "a Commonwealth's Attorney derives his or her authority from the Constitution." Connell v. Kersey, 262 Va. 154, 161, 547 S.E.2d 228, 231 (2001). Likewise, the SCC - authorized under Article IX, 4 of the Virginia Constitution - is similarly exempt from the VFOIA."). Note that after Connell was decided, the General Assembly amended the definition of public body in 2.2-3701 to state that [f]or the purposes of the provisions of [FOIA] applicable to access to public records, constitutional officers shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records. 2002 Acts of Assembly, c. 393.
51976-1977 Op. Atty. Gen. Va. 309.
6Id.
7255 P.3d 1083 (Co. 2011).
8Colo. Rev. Stat. 24-72-201 through 24-72-206.
9Ritter, 255 P.3d at 1085.
10Id. at 1088.
11Id. at 1093.
12Id. at 1094.
13Order re: Motion to Compel, Motion to Quash and Motion for Protective Order - Coach Davis' Personal Cell Phone Billing Statements in News and Observer Publishing Co. v. Baddour, Superior Court, Wake County, North Carolina, August 9, 2012.
14N.C. Gen. Stat. 132-1 through 132-10. The definition of "public records" in N.C. Gen. Stat. 132-1(a) means all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.

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