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FOIL Appeal Determination for 04-05-0A (Phil Brown)

March 12, 2004

New York State Department of Environmental Conservation
Office of Hearings and Mediation Services
625 Broadway, First Floor Albany, NY 12233-1550
Phone: 518-402-9003 Fax: 518-402-9037
Website: www.dec.state.ny.us

March 12, 2004

Mr. Phil Brown
Adirondack Explorer
36 Church Street
Saranac Lake, New York 12983

Re: Freedom of Information Law ("FOIL") Appeal No. 04-05-0A

Dear Mr. Brown:

We have received and reviewed the documents that are the subject of your FOIL appeal. We have determined that the documents were properly withheld.

The documents at issue are two criminal complaint forms completed by Investigator David G. Clarke of the Department of Environmental Conservation with respect to Mr. Carl Joseph Skalak, Jr. The two documents are not subject to release pursuant to Public Officers Law § 87(2)(e)(i) as they are compiled for law enforcement purposes and, if disclosed, would interfere with investigations or judicial proceedings. The judicial proceedings in this matter are still pending.

We would note that, if at the conclusion of the judicial proceeding, the two documents are sealed by the court, the documents would also not be releaseable at that time. Pursuant to Public Officers Law § 87(2)(a), access may be denied to documents that are exempted from disclosure by state or federal statute. If the documents were sealed, section 160.50 of the Criminal Procedure Law (which limits access to sealed documents to certain designated individuals and agencies) would apply.

The Department's original denial also relied on Public Officers Law § 87(2)(b), which provides an exemption from disclosure where there is an unwarranted invasion of personal privacy, and Public Officers Law § 87(2)(e)(ii), which provides an exemption for documents which are compiled for law enforcement purposes and which, if disclosed, would deprive a person of a right to fair trial or impartial adjudication. We do not have to reach the issue of the applicability of those sections in this matter, as Public Officers Law § 87(2)(e)(i) alone provides a basis for the withholding of these documents.

This letter is a final determination of the Department. You have the right to seek review of this determination pursuant to Article 78 of the Civil Practice Law and Rules and Public Officers Law § 89(4)(b). In the interim, if you have any questions concerning the appeal, you may contact our office at (518) 402-9003. In any further contact with this office, whether it be by telephone or written correspondence, please reference the above FOIL Appeal Number.

Sincerely yours,

/s/
Louis A. Alexander
Assistant Commissioner for Hearings
and Mediation Services

/s/
By: Molly T. McBride
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government

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