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FOIL Appeal Determination for 05-10-0A (Marshall Bell)

January 23, 2006

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1010
Phone: (518) 402-8537 FAX: (518) 402-9037
Website: www.dec.state.ny.us

January 23, 2006

Mr. Marshall Bell
9430 Hazen Road
Sherman, New York 14781

Re: Foil Appeal No. 05-10-0A
Foil Request No. 05-1148

Dear Mr. Bell:

This is in response to your appeal, pursuant to the New York State Freedom of Information Law ("FOIL"), for the names and addresses of "the DMAP [Deer Management Assistance Program] users on the McCray property, in Chautauqua [C]ounty" for the years 2002, 2003 and 2004.

By letter dated August 22, 2005, the Records Access Officer of the Department of Environmental Conservation ("Department") provided seven pages of information relating to DMAP tags "submitted to the Department for deer taken on the McCray farm." This was in addition to information provided to you by the Department's Region 9 office. However, the names and addresses from the copies of the tags were redacted in accordance with section 87(2)(b) of the Public Officers Law ("POL"). That section provides an exemption from FOIL for records (or portions thereof) where the disclosure would constitute an unwarranted invasion of personal privacy.

The Department has been sensitive to both the requirements of FOIL and the need to ensure that individual personal information is kept confidential. In prior determinations, the Department has ruled that personal information, such as individual names and addresses, should be withheld in most circumstances. For example, the Department has withheld names and addresses that appear on furbearer possession tags pursuant to the FOIL exemptions in POL § 87(2)(b)(personal privacy) and POL § 87(2)(f) (exempting disclosure in order to avoid potential personal endangerment).

Furthermore, in a recent judicial decision (Goyer v. DEC (New York Supreme Court, Albany County, November 29, 2005)), the court upheld the Department's position that the names and addresses (and other information) of individuals holding deer management permits should be withheld. The court, in its decision, referenced the FOIL exemptions relating to personal privacy and personal endangerment.

Accordingly, in light of past Department precedent and recent judicial decision, your appeal is denied and the requested names and addresses shall continue to be withheld.

Please be advised that this is the final determination of the Department of Environmental Conservation with respect to 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

Louis A. Alexander
Assistant Commissioner

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

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