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Some cellphone records of government employees are public, appeals court rules

Photo Credit: Cliffview Pilot

New Jersey citizens are entitled to know what cities and states public employees are calling on government-issued cellphones, an appeals court has ruled.

Although your name and other personal identifiers remain protected, the judges found, a government agency cannot withhold to and from wherever you called or whether it was done on personal time.

“[T]here is no absolute bar to the release of the destination location of telephone calls placed by public employees using publicly funded cell phones,” which the appeals panel said “would not impinge upon individual privacy interests.”

What’s more, a local judge could also require a municipality to disclose who was called and why “to prevent possible misuse of public funds,” the state appeals court said in its ruling.

The decision upholds a determination by the state Government Records Council that Mount Arlington officials illegally refused to give taxpayer Gayle Ann Livecchia locales after she filed a request for cellphone records for all borough employees.

Livecchia was particularly interested in whether the borough administrator at the time was making personal calls from home on a government-issued phone without paying for them.

She had no problem with information that ordinarily is removed, including the numbers being called. But she complained – and the GRC agreed – that borough officials didn’t have the right to redact the cities and states the calls were placed to and from. No privacy issues were at stake, the GRC determined.

Borough officials appealed the GRC’s findings.

But the justices ruled that the GRC properly balanced privacy rights against Livecchia’s “reasonable need” for the information to determine whether taxpayer dollars “were being used for personal, rather than government, business without reimbursement and whether municipal employees made calls from home during working hours.

“Municipal employees are public servants,” the judges declared. “[T]the privacy interest attached to government telephone records, which protects the person called and his or her telephone number, does not similarly cloak the destination location of calls placed by government employees when necessary to advance the watchful eye of a vigilant public seeking accountability of its municipal representatives.

“[T]he Borough’s assertions of privacy were unsupportable in light of Livecchia’s claims of maintaining the integrity in the use of public equipment.”

The judges also rejected the borough’s insistence that Livecchia provide a reason for her request: OPRA “does not demand the requestor submit an approved justification for release of government records,” they said.

“[T]he purpose behind the Legislature’s enactment of OPRA was to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process,” the appeals court wrote, citing previous decisions. “With broad public access to information about how state and local governments operate, citizens and the media can play a watchful role in curbing wasteful government spending and guarding against corruption and misconduct.”

The judges found that Livecchia “needed the time of the call and the destination to determine whether government or personal business was being conducted at the taxpayer’s expense. [She] acknowledged privacy concerns and did not press for the release of the phone number called.

“On the other hand, the Borough has never explained, and we fail to understand, how revealing the city and state called by a municipal employee using a taxpayer-funded cell phone designated for work use could possibly impede the privacy rights of either the caller or the person called.

“If determining the identity of callers becomes necessary to prevent possible misuse of public funds (for example, if a public official is conducting a private business at public expense), a court may require preliminary disclosure to it of the identity of the persons called and the public nature of the calls.”

The appeals court also upheld the GRC’s ruling that borough officials overcharged Livvechia by including a percentage of what it cost to buy the copying equipment. Their method: “[D]ividing the purchase price of the audiotape machine, $129.99, by the thirteen audiotape requests, computes an ‘actual cost’ per audiotape of $10.78,” the judges wrote.

The GRC rejected the borough’s methodology, which the appeals court deemed “unacceptable and arbitrary.”

“If one annualizes these figures, the full price of the audiotape machine would be recovered in less than eighteen months,” the judges wrote. “Therefore, those requesting audiotapes shortly following the machine’s acquisition would be bearing the brunt of the expense and beginning in month sixteen, requestors would be paying for non-existent equipment costs, rendering a windfall to the municipality. The Borough’s formula inequitably burdens requestors by continuing to charge for equipment years after the equipment cost was fully recouped.”

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