GRC: Personal Cell Phone Bills Are Not Public Records

In a case of first impression in New Jersey, the GRC recently determined that OPRA does not require disclosure of information on a public employee’s personal cell phone bills, even where the personal phone is sometimes used for public business. See Verry v. Boro of South Bound Brook.

The requestor in this matter believed that the Borough Clerk used his personal cell phone to conduct public business and also to make private calls while at work. His OPRA request sought the destination location of calls made and received, on various dates, on that phone.

The GRC referred theĀ  case to an ALJ, who ruled that the use of a private cell phone to make personal calls at work does not trigger OPRA, and that the privacy interest in the cell phone records outweighed the requestor’s interest in obtaining records of call destination location. The GRC adopted the ALJ’s decision.

The ALJ noted that the courts have determined that public employee telephone records are generally confidential and protected by privacy expectations. He performed the balancing test required by the Supreme Court in OPRA privacy cases, and concluded that the requestor had not shown a need for the call location information that overcame the clear privacy interest in one’s personal cell phone bills.

The requestor primarily relied on the Appellate Division’s opinion in an OPRA case, Livecchia v. Boro of Mount Arlington, where the court required disclosure of destination location data from government employees’ public cell phones, based on a claim that these employees were using the phones for personal calls. The ALJ said that Livecchia did not apply because there the phone charges were paid by the public agency; in the present case, the public did not pay for usage of the phone.

The most important aspect of this case is that the GRC rejected the requestor’s argument that the ALJ should have held a plenary hearing to determine how much the cell phone was used for government matters. I’m sure that many public employees occasionally use their personal cell phones for a work-related call. This should not subject them to the threat of an OPRA suit involving discovery and a hearing concerning their personal cell phone records.

It should be kept in mind that this decision deals only with personal cell phone bills and does not involve an important question that no New Jersey court has yet addressed: whether OPRA covers text messages about government business on personal cell phones.

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