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FOIL Appeal Determination for 05-18-5A (Barbara Zajac)

December 30, 2005

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

December 30, 2005

Mrs. Barbara Zajac
71 Melrose Avenue
Croton On Hudson, NY 10520-2643

Re: FOIL Appeal No. 05-18-5A

Dear Mrs. Zajac:

This is in response to your letter dated November 23, 2005 by which you appealed the denial of certain records by the Region 5 office of the Department of Environmental Conservation pursuant to your Freedom of Information Law ("FOIL") request.

The Region 5 office has advised me that, in responding to your FOIL request, it withheld seven records (totaling ten pages) in their entirety and withheld two one-page records in part. The records that were withheld in their entirety included the following:

- Case Progress Report, updated 9/25/03 and 10/25/03 (1 page);

- Encon Police Report Form dated 9/2/03, updated 1/26/04 (2 pages);

- Eastern District Office Case Report dated 9/2/03 (1 page);

- Encon Police Report Form dated 9/2/03 (1 page);

- Case Progress Report update 9/25/03 (1 page);

- Division of Law Enforcement Narrative Report dated 10/8/03 (3 pages); and

- Encon Police Investigative Report (Page 3) - List of Continuations/attachments (1 page).

In addition, two records (a one page statement of Robert J. Orr and a one page statement of Joseph F. Dougal) were redacted in part to remove personal information including date of birth, home address and name of employer.

According to the initial FOIL determination made by the regional office, the records and redacted information were withheld based on Public Officers Law § 87(2)(b), which provides an exception from FOIL for records (or portions thereof) which, if disclosed, would constitute an unwarranted invasion of personal privacy. Although this exception applies to the two records that were redacted in part, my review of the records that were withheld in their entirety indicate that two other exceptions from FOIL are also applicable. These include Public Officers Law § 87(2)(e) which provides an exception for records (or portions thereof) that are compiled for law enforcement purposes, and Public Officers Law § 87(2)(g) which provides an exception for intra-agency documents which are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations or external audits.

The records that were withheld have been reviewed on this appeal and the following determination has been made:

- Case Progress Report, updated 9/25/03 and 10/25/03 (1 page). The 9/19/03 portion of the report shall be released and the 10/25/03 portion of the report shall continue to be withheld pursuant to Public Officers Law §§ 87(2)(b), 87(2)(e) and 87(2)(g);

- Encon Police Report Form dated 9/2/03, updated 1/26/04 (2 pages). This report form is being released, with certain redactions on the second page in accordance with Public Officers Law §§ 87(2)(b), 87(2)(e), and 87(2)(g);

- Eastern District Office Case Report dated 9/2/03 (1 page). This report is being released in its entirety;

- Encon Police Report Form dated 9/2/03 (1 page). This report form is being released with certain redactions at the bottom of the page in accordance with Public Officers Law §§ 87(2)(b), 87(2)(e) and 87(2)(g);

- Case Progress Report update 9/25/03 (1 page). This report is being released in its entirety;

- Division of Law Enforcement Narrative Report dated 10/8/03 (3 pages). This report shall continue to be withheld pursuant to Public Officers Law §§ 87(2)(e) and 87(2)(g); and

- Encon Police Investigative Report (Page 3) - List of Continuations/attachments (1 page). The list shall continue to be withheld pursuant to Public Officers Law §§ 87(2)(e) and 87(2)(g).

With respect to the two one-page statements that had been released with redactions, it has been determined on this appeal that the redactions were appropriate pursuant to Public Officers Law § 87(2)(b).

Copies of the records being released, which comprise six (6) pages, are enclosed. As the number of pages is below the minimum threshold for imposing photocopying charges on an appeal, there is no fee for these copies.

This letter is a final determination of the Department. You have the right to seek review of this determination pursuant to Article 78 of the Civil Law Practice and Rules, and Public Officers Law § 89(4)(b). In any further contact with this office, please reference FOIL Appeal No. 05-18-5A.

Sincerely,


/s/
Louis A. Alexander
Assistant Commissioner

Enclosures

cc: Robert Freeman, Executive Director,
Committee on Open Government (w/copy of appeal)
Ruth Earl, Records Access Officer

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