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FOIL Appeal Determination for 04-12-0A (William Wurster)

May 27, 2004

New York State Department of Environmental Conservation
Office of Hearings and Mediation Services, 1st Floor
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-9003 FAX: (518) 402-9037
Website: www.dec.state.ny.us

May 27, 2004

Mr. William Wurster
PEF/ENCON
625 Broadway
Albany, New York 12233-7254

Re: Freedom of Information Law ("FOIL") Appeal No. 04-12-0A
FOIL Request No. 04-417

Dear Mr. Wurster:

On May 10, 2004, this office received your FOIL appeal of the denial of your request for "any or all listings, databases or documents that list all people assigned any type of garage permit from June 24, 2003 to December 31, 2003." Your letter states that the "garage" in question is situated "behind the DEC building," which reference is assumed to be the Department of Environmental Conservation's central office at 625 Broadway, Albany, New York.

Your request for these records was denied by Karen L. Davis, Administrative Assistant in the Department's Division of Management and Budget Services, on the grounds that the database that Office Services Unit maintains includes employee confidential information which "is not appropriate for release under . . . the Personal Privacy Protection Law" and that the information file for the time frame you requested is not available.

In your appeal, you acknowledge that some of the information in the database may be exempt under the Personal Privacy Protection Law. However, you note that "the names and the dates of entry and the dates of exit to the parking lot" should be eligible for release under FOIL.

Prior to determining what information is subject to FOIL, it is necessary to determine whether the records being sought exist. FOIL pertains to existing records, and Public Officers Law § 89(3) states in part that an agency is not required to create a record in response to a request for information. See also Matter of Gannett Co., Inc. v James, 86 AD2d 744, 745, 447 NYS2d 781, 783 (4th Dept), lv denied, 56 NY2d 502, 450 NYS2d 1023 (1982); FOIL Advisory Opinion 10543 (January 20, 1998).

Based on our review, there are no existing lists or documents of persons who were assigned any type of garage permit for the time period specified in your request. The only listing is the one that is available to all Department employees on "In-Site" and which reflects information for the most recent calendar quarter. As indicated in the initial denial, information on prior calendar quarters (historic pdf.files) are not maintained.

With respect to the electronic or computer database that contains the names of individuals that are assigned garage permits, that database undergoes continuous updating as names are added and deleted. The database reflects current information only, and does not contain retrievable files that would consist of the names of, or other information on, individuals who were assigned permits during a specified prior time period. The database cannot generate, by keystroke or queries, a list of garage permit holders for the time period of June 24, 2003 through December 31, 2003.

Accordingly, Department staff's initial denial is affirmed. This letter represents the 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 any further contact with this office, please refer to FOIL Appeal No. 04-12-0A.

Very truly yours,


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


/s/
Anthony C. Bucca
Assistant Counsel

cc: Robert J. Freeman, Executive Director
Committee on Open Government

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