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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA
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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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