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FOIL Appeal Determination for 05-03-9A (Tracy Boyle)

May 17, 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

May 17, 2005

Ms. Tracy Boyle
1513 Burns Road
Angola, NY 14006

Re: FOIL Appeal #05-03-9A

Dear Ms. Boyle:

This letter addresses your April 5, 2005 appeal of the decision of Lt. Michael R. O'Hara of the Department's Division of Law Enforcement to redact certain information from a record (in the file of call for service number 05-000455) in his response to your request under the Freedom of Information Law (FOIL, New York State Public Officers Law (POL), sections 84 through 90). Specifically, in your appeal you seek the release of the name of the individual who made a complaint regarding your possession of a turtle.

Please be advised that your appeal was not timely filed. The regulations of the New York State Department of Environmental Conservation require that an appeal be filed within thirty days of the denial (see section 616.8(d) of title 6 of the Official Compilation of Codes, Rules and Regulations of New York State). Lt. O'Hara's denial letter was dated February 4, 2005, and, as he advised in his letter, any appeal had to be filed within 30 days. Although the late filing of your appeal would be a basis to deny your appeal, we have exercised our discretion and hereby consider your appeal on the merits.

Lt. O'Hara cited three exemptions in FOIL in support of his redacting the information: POL § 87(2)(b), which authorizes withholding information where the release of that information would constitute an unwarranted invasion of personal privacy; POL § 87(2)(e)(i), which authorizes withholding information where the release of that information would interfere with law enforcement investigations or judicial proceedings; and POL § 87(2)(e)(iii), which authorizes withholding the identification of a confidential source or disclosure of confidential information relating to a criminal investigation.

Each of these exemptions provides an independent basis for the redaction of the name (in addition to other identifying details). With respect to POL § 87(2)(b), 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)(access to records may be denied or records redacted to prevent disclosure of confidential sources, including sources interviewed by law enforcement); Scarola v. Morgenthau, 246 AD2d 417, 418 (1st Dept 1998) (affirming denial of access to statements made by informants because disclosure would result in an unwarranted invasion of personal privacy); Mulhall v. Fitzgerald, 249 AD2d 852, 853 (3rd Dept 1998)(withholding statement of non-testifying witness); Advisory Opinion No. 10982 of the New York State Commission on Open Government, August 4, 1998 (portions of a complaint that identify a complainant by name or provide other identifying details may be deleted because disclosure would result in an unwarranted invasion of personal privacy).

Similarly, judicial decisions have upheld the withholding of information contained in complaints pursuant to POL §§ 87(2)(e)(i) and 87(2)(e)(iii). See Pride International Reality v. Daniels, 4 Misc3d 1005(A)(Sup Ct NY Co 2004)(holding that POL § 87(2)(e)(i) exemption is not limited to criminal law enforcement agencies and that name of complainant in a departmental agency investigation may be withheld), Johnson v. Hynes, 264 AD2d, 777, 777 (2d Dept 1999)(withholding nontestifying witness statement pursuant to POL § 87(2)(e)(iii)); see also Advisory Opinion No. 13971 of the New York State Commission on Open Government, March 27, 2003 (POL § 87(2)(e) (iii) potentially relevant with respect to complaints to law enforcement agency).

Our review finds that Lt. O'Hara properly applied the three FOIL exemptions in redacting the name of the complainant (in addition to other identifying details) from the record furnished to you. Accordingly, your appeal is denied.

This letter constitutes the final determination of the Department of Environmental Conservation regarding your April 5, 2005 FOIL appeal. You have the right to seek judicial review of this determination pursuant to Article 78 of the New York Civil Practice Law and Rules and POL § 89(4)(b).

Sincerely yours,


/s/
Louis A. Alexander
Assistant Commissioner


/s/
P. Nicholas Garlick
Administrative Law Judge

cc: Robert Freeman, Executive Director
Committee on Open Government
Ruth Earl, Records Access Officer

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