September 7, 1976

THE HONORABLE WILLARD J. MOODY
Member, Senate of Virginia

76-77 309

This is in reply to your request for my opinion regarding disclosure of the records of telephone calls charged to the Commonwealth on credit cards issued to members of the Senate and House of Delegates of the General Assembly. Specifically, you request my opinion on the legal issue whether such records (1) are exempt from disclosure under the Virginia Freedom of Information Act or (2) are prohibited from being disclosed by any other provision of law.

In 1973, after studying various alternatives including installation of SCATS (State Controlled Administrative Telephone System) line telephones in district offices of members of the General Assembly, the Commission on the Legislative Process recommended that members be provided with telephone credit cards. H. Doc. 13 (1973) at 25. This policy, it was felt, constituted the preferable procedure for meeting long-distance needs of "the members to communicate with their constituents, fellow members, and State agencies in their efforts to discharge the work which they have accepted in the interests of the Commonwealth." Id. As a result of this recommendation, both the Senate and the House of Delegates passed separate resolutions resolving that their respective clerks were "authorized and directed to take such steps as may be required in order to furnish each member . . . a telephone credit card for his use in exercising his responsibilities in matters of State. It shall be the duty of the Clerk to attend to all details incident to the proper administration of this new program." See S. Res. 25 and H. Res. 28 (1973).

Arrangements for these credit cards were made by the clerks with the Virginia Public Telecommunications Council (hereinafter Council), the agency charged with the duty of operating SCATS and providing telecommunications facilities and services throughout the State. See §§22-331 to -344.3 of the Code of Virginia (1950), as amended. This agency receives the telephone charges of all agencies --SCATS, direct dialing and credit card, pays such charges to the telephone company and sends monthly toll charges to agencies, which on an "IDT" (interdepartmental transfer) basis reimburse the Council. The monthly toll charges provided agencies are very similar to an ordinary telephone bill showing (1), by identification code number, the agency involved, (2) the phone number or credit card number to which charges were made, (3) the date the phone call was made, (4) the place called, including, if applicable, the telephone number and place from which the call was made, (5) the telephone number called and (6) the charges for each call. Each clerk verifies the accuracy of the records of charges prior to payment. It is these records, which are kept by both clerks as well as the Council, that are the subject of your inquiry.

The question presented is purely a legal issue, one of interpreting the law as it now stands and not one of political philosophy, nor one relating to what constitutes proper use of the telephone credit cards. The inquiry is simply whether the telephone records in question are exempt or prohibited from disclosure.

"The Virginia Freedom of Information Act" is set forth in §§2.1-340 to -346.1 of the Code. The Act is applicable to "any authority, board, bureau, commission, district or agency of the State . . . and other organizations, corporations or agencies in the State, supported wholly or principally by public funds." Section 2.1-341(a). It is applicable to the executive, judicial and legislative branches of government. See, e.g., Report of the Attorney General (1972-1973) at 487. The proposition that the Act applies to the General Assembly is indisputable since there are express exceptions to such applicability relating to certain legislative activities. See §2.1-345; see also §2.1-342(b)(4). The Act thus covers the activities of the Clerks' offices of both the Senate and the House of Delegates. In this regard, it is unlike the Federal Freedom of Information Act, provisions of which specifically exclude the Congress. See 5 U.S.C. §551(1)(A)(1966).

To be within the purview of the Virginia Freedom of Information Act, telephone billing records must fall within the definition of "official records" which is as follows:

"'Official records' means all written or printed books, papers, letters, documents, maps and tapes, photographs, films, sound recordings, reports or other material, regardless of physical form or characteristics, made and received in pursuance of law by the public officers of the State and its counties, municipalities and subdivisions of government in the transaction of public business." Section 2.1-341(b).

The telephone billing records are documents or reports made and received in pursuance of law by the Clerk of the Senate and the Clerk of the House of Delegates, public officers of the Commonwealth. Consequently, such records are "official records." As has been noted, the same records are made and received by the Council, and are "official records" of that agency.

"Official records" must be disclosed unless (1) "otherwise specifically provided by law," see §2.1-342(a) or (2) exempted from disclosure pursuant to provisions of the Act itself, see §2.1-342(b). Section 2.1-342(a) provides, in pertinent part, as follows with respect to such records:

"Except as otherwise specifically provided by law, all official records shall be open to inspection and copying by any citizens of this State during the regular office hours of the custodian of such records. Access to such records shall not be denied to any such citizen of this State, nor to representatives of newspapers and magazines with circulation in this State, and representatives of radio and television stations broadcasting in or into this State; provided, that the custodian of such records shall take all necessary precautions for their preservation and safekeeping."

Paragraph (b) of 2.1-342 enumerates those records which are excepted from coverage by the Virginia Freedom of Information Act. Section 2.1-342(b)(4) does exempt from the disclosure provisions "[memoranda], working papers and correspondence held by members of the General Assembly. . . ."

In considering the applicability of this specific exception I am governed by the provisions of §2.1-340.1 which provides, in pertinent part, as follows:

". . . To the end that the purposes of this chapter may be realized, it 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. Any exception or exemption from applicability [of the Act] shall be narrowly construed in order that no thing which should be public may be hidden from any person."

Construing §2.1-342(b)(4) pursuant to this direction, I cannot conclude that the telephone records fall within the purview of memoranda, working papers or correspondence held by legislative members. Indeed, I find no exemption from the Act which would be applicable. I am, therefore, of the opinion that the records in question are not exempt from disclosure under the provisions of the Virginia Freedom of Information Act.

As hereinabove indicated, the fact that the records do not fall within any exemption in the Act does not mean that they can be disclosed. The Act itself does not prevent any records from being disclosed; instead it states that certain records are excepted from mandatory disclosure. The question left for resolution, however, is whether any other provision of law prohibits the records in question from being disclosed. The area of concern is whether members of the General Assembly or citizens of Virginia have either a constitutional or statutory right of privacy as to phone numbers which appear on the monthly charge records.

It is inevitable that there should be occasional conflict between the concept of freedom of information and the concept of right to privacy. In interpreting enactments which attempt to define these concepts, one should remember that freedom of information legislation has as its objective requiring that the public's business be conducted in the open and that official records of such business be available for inspection by citizens. On the other hand, right to privacy legislation seeks to insure the confidentiality of personal information about private individuals in the possession of government so as to protect the privacy of these citizens.

While the right to privacy is one which is not found in any express language of the United States Constitution, its existence is considered to be implicit. Paul v. Davis, U.S., 47 L.E.2d 402 (1976). In Paul, Mr. Justice Rehnquist, speaking for the Court, summarily dismissed a contention that dissemination of "mug shot" photos constituted a violation of any constitutionally guaranteed right to privacy:

"While there is no 'right of privacy ' found in any specific guarantee of the Constitution, the Court has recognized that 'zones of privacy ' may be created by more specific constitutional guarantees and thereby impose limits upon government power. [Citations omitted.] Respondent's case, however, comes within none of these areas. He does not seek to suppress evidence seized in the course of an unreasonable search. [Citations omitted.] And our other 'right of privacy ' cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe [v. Wade] the Court pointed out that the rights found in this guarantee of personal privacy must be limited to those which are 'fundamental ' or 'implicit in the concept of ordered liberty ' as described in Palko v. Connecticut, 302 U.S. 319, 325 (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection --matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States' power to substantially regulate conduct.

"Respondent's claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based not upon a challenge to the State's ability to restrict his freedom of action in a sphere contended to be 'private,' but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this matter." 47 L.Ed.2d at 420-21.

The constitutional right of privacy is thus recognized only with respect to those rights regarded as "fundamental." No such right has been found in the field of telephone recordkeeping. In fact, phone numbers per se have been protected under neither the federal wire interception statutes, 18 U.S.C. §§2510-2520 (1968), nor provisions of the Communications Act of 1934, 47 U.S.C. §605. See United States v. Giordano, 416 U.S. 505 (1974); United States v. Falcone, 505 F.2d 478 (3rd Cir. 1974). In United States v. Brick, 502 F.2d 219 (8th Cir. 1974), it was held that a pen register (a mechanical device which can be attached to a telephone line to keep a log of all numbers dialed on that line) recorded a mere symbol, i.e., a telephone number, and thus was not considered constitutionally offensive. See also Craig v. Virginia State Board of Elections, F.Supp. (E.D. Va. 1975) Civil Action No. 75-0021-R, which held that disclosure of social security numbers, required in order to register to vote, raised an invasion of privacy question "so minimal as to be, for all practical purposes, nonexistent."

Regardless whether telephone numbers are within "a zone of privacy", and I cannot conclude that they and [sic], it must be pointed out that the federal constitution protects the right of privacy only in circumstances in which such right may reasonably be expected. Roe v. Wade, 410 U.S. 113, 154-55 (1973); Lovisi v. Slayton, F.2d (4th Cir. 1976) Civil Action No. 73-2337. Telephone credit cards are used by General Assembly members in exercising their responsibilities in "matters of State." There can be no anticipated right of privacy as to phone numbers when legislators are fulfilling these obligations. Moreover, I cannot conclude that a citizen, contacted by his representative either initially or as a result of such representative's returning a call, expects that his telephone number will not appear on a monthly telephone bill. This is not to say that citizens do not have a prerogative of privacy with respect to the content of their telephone conversations. They do and can exercise that privilege by refusing to divulge the substance of such communications when they so desire. Even where a constituent has an unlisted telephone number, which is a contractual not a constitutional right, that citizen cannot reasonably expect that, if he leaves his number for a member of the General Assembly to return a call, there will be no record of such subsequent call. In short, I am of the opinion that there is no constitutional right of privacy which would prohibit disclosure of the telephone records in issue.

The question still remains whether there is any statutory right of privacy. The 1976 Session of the General Assembly enacted the Privacy Protection Act of 1976, Chapter 597, [1976] Acts of Assembly 740, codified as §§2.1-377 to -386 of the Code. This Act constituted a recommendation of the Virginia Advisory Legislative Council relating to computer privacy and security. See S. Doc. 27 (1976). The Council's proposals were the result of a two-year study which included consideration of federal privacy legislation enacted, during its study, by the United States Congress. See 5 U.S.C. §552(a) (1974).

The Privacy Protection Act imposes certain requirements on agencies maintaining personal information, and agencies maintaining an information system that includes personal information. "Any agency maintaining an information system that includes personal information" shall make no dissemination to any system without (1) specifying requirements for security and usage including limitations on access thereto and (2) receiving reasonable assurances that the requirements and limitations will be observed. Section 2.1-380(5). "Any agency maintaining personal information" must give notice to the "data subject" of the dissemination of personal information to any nongovernmental organization not having regular access authority. Section 2.1-382A.2. The definition of "personal information," contained in the Act, is as follows:

"The term 'personal information ' means all information that describes, locates or indexes anything about an individual including his education, financial transactions, medical history, ancestry, religion, political ideology, criminal or employment record, or that affords a basis for inferring personal characteristics, such as finger and voiceprints, photographs or things done by or to such individuals; and the record of his presence, registration, or membership in an organization or activity, or admission to an institution. The term does not include routine information maintained for the purpose of internal office administration whose use could not be such as to affect adversely any data subject nor does the term include real estate assessment information." Section 2.1-379(2).

The entire legislative history of this Act, S. Doc. 27, supra, as well as the legislative history of the Federal Privacy Act of 1974, 4 U.S. Code Cong. and Adm. News, 93rd Cong., 2nd Sess. 6916-999 (1974), emphasizes that what is sought to be protected is "personal data the dissemination of which could work . . . economic harm or damage . . . personal reputation." S. Doc. 27, supra at 7. It was ". . . the intent of the [VALC] that affirmative steps be taken now by the General Assembly to obviate the possibility of the emergence of cradle-to-grave, detailed dossiers on individuals, the existence of which dossiers would, 'at the push of a button ', lay bare to anyone's scrutiny, every detail, however intimate, of an individual's life." Id. Construing the Privacy Protection Act in light of this legislative history, I am of the opinion it is not applicable to the telephone records in question. Such records are "routine information maintained for the purpose of internal office administration. . . ." Section 2.1-379(2). The verification of proper telephone charges and their payment is an activity for which the Clerks of the Senate and House of Delegates are legally responsible. Release of records relating to such activity cannot be said to constitute a use which might be reasonably anticipated "to affect adversely any data subject" whether that term, in the context of this inquiry, includes a member of the General Assembly or a constituent.

I am, therefore, of the opinion that the records about which you inquire are not prohibited from being disclosed by any provision of law, either constitutional or statutory; since they are not exempt from disclosure under the Virginia Freedom of Information Act, pursuant to §2.1-342(a) of that Act they must be open to public inspection.