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FOIL Appeal Determination for 04-27-0A (Jackie Goyer)

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


February 11, 2005

Ms. Jackie Goyer
New York State Assembly
Computer Services, Room 116
One Commerce Plaza
Albany, New York 12210

Re: Freedom of Information Law Appeal No. 04-27-0A

Dear Ms. Goyer:

This is in response to your appeal pursuant to the Freedom of Information Law ("FOIL", codified at §§ 84 through 90 of the New York State Public Officers Law ("POL")) for the latest copy of the Deer Management Permit Application file maintained by the Department of Environmental Conservation ("Department"). Specifically, you requested a copy of the file layout, an explanation of any codes used and what the codes refer to, as well as the total record count. You indicated a preference for the material in an ASCII text file, and, as for the type of media, by Zip Disk, CD or Diskette.

As you know, your FOIL request was initially denied by the Department on the ground 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 specifically recognizes certain grounds on which access to records of an agency may be denied. One of those grounds allows for 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)). The subdivision 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. The Department has received various requests since the institution of DECALS for release of the entire list of names and addresses in the database, including requests from other public officeholders. Such requests have been uniformly denied by the Department in light of the personal privacy concerns.

In considering your appeal, the Department has re-evaluated 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. During this reevaluation, the Department has reviewed the "licensee details" in the database. For your reference, these details (entries) include the following:

- individual's first name;
- individual's last name;
- individual's middle name or initials;
- suffix;
- gender;
- height;
- eye color;
- date of birth;
- driver's license;
- customer identification number;
- whether the licensee is a New York resident;
- whether the licensee is legally blind;
- residency proof type;
- whether the licensee served in the military;
- whether the licensee is permanent 40% military disabled;
- fulfillment information;
- preference points;
- e-mail address;
- residential and mailing address information (including country and county of residence); and
- telephone number.

As the listing of these entries indicates, the database contains considerable personal information, including intimate details relating to personal matters (such as medical conditions and physical attributes), the release of which could lead to an unwanted intrusion on an individual's privacy. Furthermore, the computerized nature of this database and the release in that format provides an ease of dissemination and exchange of such information which also implicates privacy considerations.

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 information in 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 is of such personal nature that it 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 a denial of access where a record "if disclosed could endanger the life or safety of any person." It is beyond doubt that the right to maintain personal privacy includes the obligation of government to ensure personal security. At a time of growing private and governmental recognition and concern about "identity theft" and its serious impact on the personal and financial lives of individuals across the country, releasing an extensive amount of an individual's personal information poses substantial risk that their identities may be appropriated for illegal purposes and illicit financial gain.

The Department in years past had provided lists of the names and addresses of sporting permit and license holders. However, the facility of transmission of personal information through technologically modern systems and the pressing concerns associated with "identity theft" prompted the Department to reconsider the appropriateness of a release of any such information. The Department determined that the release of such personal information was an unacceptable security risk to members of the public, particularly in light of the fact that lists released from the DECALS system would be in an electronic format that would be easily transmissible to others beyond the initial recipient. In light of the foregoing, a rational basis exists for the Department to have discontinued past practice and to no longer disclose any such information on holders of sporting permits and licenses. Indeed, in light of such personal security considerations, the Department would have been remiss if it had not implemented a policy restricting the dissemination of such personal information in order to ensure greater public protections.

It should also be noted that we do not believe that it has been within the general expectation of sporting license and permit applicants that the information they provide to the Department for recreational sport activities would then be distributed or otherwise shared by the Department with outside sources. For security and other purposes, the Department has established a procedure to allow law enforcement agencies, courts and other interested persons to inquire whether an individual holds a sporting license or permit, subject to personal privacy considerations.

Case law and other precedent provides a basis to withhold personal information such as that contained in DECALS. See, e.g., Investigation Technologies, LLC v. Horn, 4 Misc3d 1023, 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); Pasik v. State Board of Law Examiners, 114 Misc2d 397 (New York Co Sup Ct 1982), modified 102 AD2d 395 (1st Dept 1984), appeal withdrawn, 64 NY2d 886 (1985)(home addresses and ages of persons who graded examinations questions exempt from disclosure); American Broadcasting Companies, Inc. v. Siebert, 110 Misc2d 744 (1981)(home addresses of check cashing business officers to be kept private in light of danger to life and safety).

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).

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. See, e.g., Advisory Opinion ("AO") 14136, July 14, 2003 ("home phone numbers . . . may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy"); AO-13878, February 12, 2003 (opining that "home address or home phone number . . . could . . . justifiably be withheld as an unwarranted invasion of personal privacy"); AO-12811, July 17, 2001 ("home addresses of . . . persons who are not public employees . . . may be withheld on the ground that disclosure would constitute an unwarranted invasion of personal privacy"); AO-11570, July 14, 1999 (medical information and home addresses may be withheld); AO-11386, March 22, 1999 (home addresses of non-public employee licensees may be withheld "on the ground that disclosure would constitute an unwarranted invasion of personal privacy"); AO (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").

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 reconfirms its earlier determination that the information provided by the individuals who apply for sporting licenses and permits is entitled to be withheld pursuant to POL § 87(2)(b) and, as also discussed herein, pursuant to POL § 87(2)(f).

We respectfully recognize your interest in this information but it is the Department's conclusion under the circumstances that personal privacy and safety considerations are paramount. Accordingly, the Department's initial determination withholding the DECALS database is affirmed and your FOIL appeal No. 04-27-0A is denied.

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: Robert Freeman, Executive Director, Committee on Open Government
William F. Collins, Counsel to the Majority
Lynette Stark, Deputy Commissioner for Natural Resources &
Water Quality
Gerald Barnhart, Division Director, Fish & Wildlife
Ruth Earl, Records Access Officer

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