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FOIL Appeal Determination for 04-21-8A (Christopher D. Thomas)

February 11, 2005

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-8537 FAX: (518) 402-9037
Website: www.dec.state.ny.us

BY FIRST CLASS MAIL

February 11, 2005

Christopher D. Thomas, Esq.
Nixon Peabody LLP
Clinton Square
P.O. Box 31051
Rochester, New York 14603-1051

Re: Freedom of Information Law Appeal No. 04-21-8A

Dear Mr Thomas:

This is in response to your appeal on behalf of WHEC TV-10 pursuant to the Freedom of Information Law ("FOIL", codified at §§ 84 through 90 of the New York State Public Officers Law ("POL")), with respect to the denial of access to information from the hunting license database maintained by the Department of Environmental Conservation ("Department").

Specifically, WHEC TV-10 requested information that would identify the holders of hunting licenses within five New York counties: Monroe, Wayne, Livingston, Ontario and Genesee. According to your previous correspondence, WHEC TV-10 intends to use the information it obtains from the Department for a news story that would investigate whether felons are in possession of licenses that would allow them to hunt with firearms or other weapons. On appeal, you clarified that the information requested was to include the list of the names, dates of birth and county residences of those licensed to hunt in the aforementioned counties.

As you know, your FOIL request was initially denied by the Department on the grounds that the disclosure of the records would constitute an unwarranted invasion of personal privacy.

As stated in our letter of January 14, 2005, the Department installed a new database system within the past two years. This database system, referred to as the DEC Automated Licensing System or "DECALS", maintains information on sporting licenses and permits, including deer management permit applications. During the installation of DECALS, the Department considered the extent to which the database, into which personal information on each licensee and permittee is entered, may be accessible pursuant to FOIL.

FOIL recognizes certain grounds on which access to records of an agency may be denied. One of those grounds allows information to be withheld if the release would constitute an unwarranted invasion of personal privacy.

Specifically, FOIL provides that an agency may deny access to records or portions of records that "if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article" (POL § 87(2)(b)). Subdivision two sets forth a non-exclusive list of six examples of what constitutes an "unwarranted invasion of personal privacy" (see POL § 89(2)(b)(i)-(vi)). It recognizes the government's legitimate need to keep certain information confidential (see also POL § 96(1)(c) (establishing, pursuant to New York's Personal Privacy Protection Law, restrictions on the disclosure of records)). Two of the examples specifically address the disclosure of information of a personal nature (see POL § 89(2)(b)(iv)&(v)).

The six examples set forth in the statute do not represent the universe of what constitutes an unwarranted invasion of personal privacy (the preceding statutory language in POL § 89(2)(b) reads "includes, but shall not be limited to"). Accordingly, it is incumbent on an agency to comprehensively review all potential implications that the release of records may have on personal privacy, and to protect against an unwarranted invasion of personal privacy in every context.

Based on a consideration of applicable law, the Department determined at the time that DECALS was being developed that the database was subject to the personal privacy protections of FOIL and that any release of the information on the database would constitute an unwarranted invasion of personal privacy. In considering your appeal, the Department has reevaluated the degree of public access appropriate to the DECALS database and considered whether the existing policy of protecting such personal information should be altered or modified.

What constitutes an unwarranted invasion of personal privacy "is measured by what would be offensive and objectionable to a reasonable [person] of ordinary sensibilities . . . . This determination requires balancing the competing interests of public access and individual privacy" (Empire Realty Corp. v. NYS Division of the Lottery, 230 AD2d 270, 273 (3d Dept 1997)(quoting Dobranski v. Houper, 154 AD2d 736, 737 (3d Dept 1989)). It is also significant that the information in the database relates to and arises from a voluntary recreational activity, and not from the permitting or operation of a regulated business or commercial activity. Furthermore, the database includes personal information which does not relate to governmental decision- or policy-making.

As a result of the Department's re-evaluation of the FOIL status of the information contained in DECALS, the Department continues to hold the view that the information should be withheld on personal privacy grounds pursuant to POL § 87(2)(b).

The Department notes that withholding access to the DECALS database is also supported by POL § 87(2)(f) which allows for denial of access where a record "if disclosed could endanger the life or safety of any person." During the development of the DECALS database, a primary consideration was the issue of personal security. It is beyond doubt that the right to maintain personal privacy includes the obligation of government to ensure such security. At a time of growing recognition of the problem of "identity theft" and its pervasive spread throughout our communities, releasing an individual's personal information poses substantial risk that their identities may be appropriated for illegal purposes and/or illicit financial gain. In light of the foregoing, it is rational for government to conclude that such personal information, as is contained in the DECALS database, should not be disclosed.

Case law and other precedent provides a basis to withhold personal information such as that contained in DECALS, including the categories of information that you requested (see, e.g., Investigation Technologies, LLC v. Horn, 4 Misc 3d 1023, 2004 WL 2059998 (New York Co. Sup Ct 2004)(denying dissemination of detainees' birth dates); Beyah v. Goord, 309 AD2d 1049, 1050 (3d Dept 2003)(home address, home telephone numbers, and date of birth to be redacted); Harris v. City University of New York, 114 AD2d 805 (1st Dept 1985) (allowing for deletion of names and addresses from curricula vitae)). Decisions interpreting the federal Freedom of Information Act have also recognized the privacy interest associated with personal information (see, e.g., National Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 875 (DC Cir 1989)("privacy interest of . . . individual in avoiding . . . unlimited disclosure of . . . name and address is significant"), cert. denied, 494 US 1078 (1990)).

As you know, the Commission on Open Government ("Commission") of the New York State Department of State is responsible for overseeing and advising with respect to the implementation of FOIL. The Commission has issued a number of advisory opinions which the Department believes further support withholding various categories of information contained in the DECALS database. With respect to dates of birth which you have requested, see, e.g., Advisory Opinion (F.W. Valentino), December 27, 1996 (disclosure of "details that would enable the public to know of one's age would constitute an unwarranted invasion of personal privacy"). With respect to home address information, see, e.g., AO-13878, February 12, 2003 (opining that home address could "justifiably be withheld as an unwarranted invasion of personal privacy").

In your appeal, you referenced several decisions in support of your position. We have reviewed these decisions and conclude that they are distinguishable. You cited Kwitney v. McGuire, 53 NY2d 968 (1981), in which the Court of Appeals affirmed a request to inspect New York City pistol license applications. In that case, however, there was a specific section of the New York Penal Law which provides that the application for such licenses "shall be a public record" (see Penal Law § 400.00(5)). Hunting licenses are not the same as pistol licenses and no statutory provision states that hunting license applications are public records.

You also cited American Broadcasting Companies, Inc. v. Siebert, 110 Misc2d 744 (1981) which required disclosure of information on licensed check cashing businesses. However, in that case the request was for information relating to a regulated business. Here, the personal information that is being requested was provided in relation to a recreational, non-business activity and is therefore entitled to greater protection (see AO-13878, February 12, 2003 (commenting on distinctions between business and home information with respect to personal privacy)).

You state in your letter that lists of licensees are generally only exempt from disclosure subject to a requestor's commercial or fund-raising motive. We disagree. The Department believes that the information contained in such lists must be evaluated in accordance with the exemptions set forth at POL § 87(2) and, by incorporation, POL § 89(2)(b), among other applicable provisions. We have reviewed the remaining decisions that were cited in your letter and have concluded that they were not persuasive with respect to this matter.

The Department's review involved a number of Department personnel, and required considerable time to complete. The Department appreciates your patience in this regard.

Throughout this process, the Department has sought to ensure an appropriate balance between the public's right to access governmental records and the privacy rights of the individuals whose information is contained in the DECALS database. Based on its review, the Department's initial determination withholding the DECALS database is affirmed and your FOIL appeal No. 04-21-8A is denied pursuant to POL § 87(2)(b) & (2)(f).

However, please be advised that the Department has a verification procedure that may assist you in obtaining information that you are seeking. The Department will respond to inquiries as to whether a specific individual or individuals currently hold sporting licenses and permits. Such inquiries have been made by individuals, law enforcement agencies, and law firms, among others.

If WHEC TV-10 has a specific list of names that it wishes to have checked against the DECALS database (assuming that the list is in a suitable and compatible format for such a comparison with the DECALS database), it may submit the list to the Department for that purpose. Where the WHEC TV-10 list includes names such as a Robert Smith or Robert Jones for which there may be several licensees in the DECALS database with the same name, additional information may be required from WHEC TV-10 to help narrow the search.

To the extent that any names are found to be on both the WHEC TV-10 list and the DECALS database, WHEC TV-10 would be so advised.

Any such list can be sent to Ruth Earl, the Department's Record Access Officer, in care of the Department of Environmental Conservation, 625 Broadway, 14th floor, Albany, New York 12233, for forwarding to the appropriate Department personnel. If you have any questions about the verification procedure, please feel free to contact me or Ms. Earl. Please be advised that this is the final determination of the Department of Environmental Conservation regarding your FOIL appeal. You have the right to seek judicial review of this determination pursuant to Article 78 of the New York State Civil Practice Law and Rules and POL § 89(4)(b).

For the New York State Department of
Environmental Conservation


By: ________________/s/___________________
Louis A. Alexander
Assistant Commissioner for Hearings and
Mediation Services

cc: Brett Davidsen, WHEC TV-10
Robert Freeman, Executive Director, Committee on Open Government
Lynette Stark, Deputy Commissioner for Natural Resources &
Water Quality
Gerald Barnhart, Division Director, Fish & Wildlife
Ruth Earl, Records Access Officer

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