Court orders officials to release government cell phone info

New Jersey officials who use taxpayer funded cell phones cannot keep information on the destination of outgoing calls secret, a state appellate court ruled earlier this week.

In Livecchia v. Borough of Mount Arlington, the Superior Court of New Jersey, Appellate Division, ruled on Wednesday that the public interest in information on the city and state of the location of cell phone calls outweighed the privacy interests of state officials. It also rejected an effort by the state to absolutely bar such information from becoming public.

The court said “there is no absolute bar to the release of the destination location of telephone calls placed by public employees using publicly funded cell phones and the same would not impinge upon individual privacy interests.”

The case began when resident Gayle Ann Livecchia submitted a public records request for two months’ worth of cell phone records documenting the use of publicly funded phones by all employees in the borough.

Livecchia wanted to use the records to see whether employees exceeded limits placed on the taxpayer-funded phones and also whether individuals were using the phones for personal reasons without reimbursing the borough, according to the court.

The borough released the cell phone records, but redacted the number and destinations listed on the itemized call lists because officials thought that, by releasing those details, they would invade the privacy of borough employees.

Livecchia appealed the redaction of the destination information to the Government Records Council, a body tasked with mediating public records disputes, and argued that, while the phone numbers listed were private, information on the destination of the calls should be public.

The council sided with Livecchia and ordered the release of the destination information after agreeing that the public interest in disclosure of the information outweighed any privacy concerns for employees. The borough then appealed.

The appellate court upheld the council's decision, saying the destination information would shed light on whether borough officials were using the publicly funded phones improperly.

The court used a seven-factor balancing test to determine whether to release the information. On one side, the court examined the type of records requested, the information contained in the records, the potential harm from disclosing the information without consent of the employees, the injury that could result from the disclosure of the records and the adequacy of the safeguards instituted to prevent unauthorized disclosure.

On the other side, the court examined the need for accessing the records and whether there was a statutory mandate or policy that suggested the records should be open.

The court ruled that releasing the records did not impede on the privacy rights of the caller or the person called. The court held that it "failed to understand" how the privacy rights of public employees were implicated at all by revealing the city and state called by a municipal employee.

In contrast, the court found Livecchia to have a strong public interest in accessing the records. “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,” the court said.

The court then noted that releasing the information furthered the purpose of the state’s public records law.

“Municipal employees are public servants,” the court said. “Rooting out the possible misuse of the public fisc and abuse of the taxpayer’s trust is the bedrock upon which (the state’s public records law) rests.”