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FOIL Appeal Determination 2 for 04-28-3A (James Ryan)

July 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

July 11, 2005

James Ryan
23 Heathbrook Drive
Poughkeepsie, New York 12603

Re: Freedom of Information Law ("FOIL") Appeal No. 04-28-3A

Dear Mr. Ryan:

On January 13, 2005, we mailed to you our determination on the above-referenced appeal relating to records on Red Oaks Mill Farm (the "Property"). By subsequent conversation with, and e-mail transmittal to, Administrative Law Judge ("ALJ") Molly T. McBride, you identified fifteen categories of information that you believed Department staff had failed to fully address in its review of your initial FOIL request. In response to your concern, we reopened this matter and have reconsidered your appeal in light of the categories that you identified.1 You were so advised by ALJ McBride's correspondence dated March 3, 2005, in which she indicated that your FOIL appeal was "still pending."

ALJ McBride requested that Region 3 staff of the New York State Department of Environmental Conservation ("Department") search for additional documents. Please be advised that the Department's review of records, in responding to a FOIL request, covers the period specified by the requestor up to and including the date of the Department's receipt of the initial FOIL request. With respect to your FOIL request, this would be October 4, 2004.

Regional staff have confirmed that they have completed their search for records, as referenced in your March 1, 2005 email, for the period up to and including October 4, 2004. The following information is provided on the categories listed in your e-mail:

1) "Encon Officers notes"/"Records of complaints to Encon Officers." Environmental Conservation Officers in Region 3 were specifically asked to furnish any type of log book that is kept for incoming calls, including complaints. ALJ McBride was advised that no such log book is maintained. According to regional staff, when a complaint is called into the region, the call is referred to the Environmental Conservation Officer ("ECO") who is covering the particular area. If a record on the call is generated, it would be by the ECO to whom the call was referred.

Regional staff went to the answering ECOs to see what, if any, records they had with regard to the Property. One of the ECOs reviewed a spiral notepad that he maintains for his own use which includes names and telephone numbers of individuals and, in some instances, the subject of the complaint. The notepad contained two undated pages with certain names and telephone numbers relating to the Property, in addition to names and telephone numbers relating to other matters.

Regional staff advised that it is their position that the two pages may be withheld pursuant to the following sections of the New York Public Officers Law ("POL"): POL § 87.2(e) (records compiled for law enforcement purposes); POL § 87.2(g) (interagency materials)2; and POL § 87.2(b) (records which if disclosed would constitute an unwarranted invasion of personal privacy).

POL § 87.2(b) provides a basis for withholding the two pages. It has long been held that portions of a complaint that identify a complainant by name or provide other identifying details may be redacted because disclosure would result in an unwarranted invasion of personal privacy. See, e.g., Pennington v. Clark, 16 AD3d 1049 (4th Dept. 2005); Advisory Opinion No. 10982 of the New York State Commission on Open Government, August 4, 1998.

With respect to the other two exceptions, we do not believe that the exception in POL § 87.2(g) for intra- or inter-agency materials would serve a basis to withhold these records because the notes do not contain opinions, recommendations or other deliberative material to which this exception applies. Although judicial decisions have upheld the withholding of information contained in complaints pursuant to POL § 87.2(e), we do not have to determine whether this exception is relevant in light of the applicability of the exception in POL § 87.2(b).

On one of the two pages from the spiral notepad, there is a handwritten note with your name and telephone number. While that page could be released to you (with all material redacted except for your name and telephone number), we assume that you do not need a copy. If our assumption is incorrect, please let us know and we will forward a redacted copy to you.

2) "Pesticide permit(s)." Your inquiry was referred to Region 3's pesticide program, and regional staff has advised us that no pesticide permits were issued with respect to the Property.

3) "Record of dumping complaint filed in 2004." This category was not contained in your original request and, accordingly, is not required to be addressed on this appeal. However, this is to advise that your request has been forwarded to Region 3's Solid Waste Division to conduct a review for any responsive records. We have asked the Solid Waste Division to respond directly to you through Mr. Michael Knipfing, the Region 3 FOIL coordinator.

4) Remaining twelve categories listed in your March 1, 2005 e-mail. No records created or received by the Department up to the October 4, 2004 receipt of your FOIL request were located by Regional staff other than those previously addressed in their initial FOIL response, our letter of January 13, 2005, and the above-referenced two spiral notepad pages. Regarding your category "Back sides of documents," it is not clear to what documents you are referring. None of the documents that we reviewed on the appeal was double-sided. However, if you have any document where a back-sided page appears to be missing, please forward it to our attention.

This letter is the final determination of the Department on your FOIL Appeal No. 04-28-3A. 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).

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
Ruth Earl, Records Access Officer
Michael Knipfing, FOIL Coordinator, Region 3

1In your e-mail dated March 1, 2005, you listed the following categories: "Encon Officers notes," "Record of complaints to Encon Officers," "interoffice email," "interoffice letters," "Pesticide permit(s)," "Record of dumping complaint filed in 2004," "Summary report for 2004," "Shooter changes since 2001," "Past violations," "Back sides of documents," "Letters from Senator Sala[n]d's office to DEC on subject," "Letters from Assemblyman Miller's office to DEC on subject," "email sent to Mar[c] Moran," "email sent to the Commissioner," and "email sent to Ted Kerpez."

2We assume that staff meant to reference the "intra-agency material" exception in POL § 87.2(g).

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