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FOIL Appeal Determination for 05-22-6A (William P. Tiernan)

January 13, 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 13, 2006

Mr. William P. Tiernan
P.O. Box 504
Waddington, New York 13694

Re: FOIL Appeal No. 05-22-6A
Burning Offense

Dear Mr. Tiernan:

This is in response to your letter of December 21, 2005 by which you appealed the November 23, 2005 denial of the Region 6 office of the New York State Department of Environmental Conservation (DEC or Department) to reveal the name of the "source" who provided information to DEC regarding a burning offense. You had requested the name from the Region 6 office in your Freedom of Information Law (FOIL) request dated July 28, 2005.

The Region 6 office has supplied this office with the records relevant to your request and upon review, I have concluded that its decision to withhold the name of the complainant(s) is consistent with FOIL's provisions which are codified in the Public Officers Law (POL).

POL § 87 (2)(b) exempts records from disclosure 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 § 89(2) provides that "[a]n unwarranted invasion of personal privacy includes, but shall not be limited to: * * * (iv) disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it." While the substance of the complaint was clearly relevant to the work of the agency and specifically, to the Environmental Conservation Officers (ECOs) that followed up on the information, the identity of the person(s) is not. See, e.g., Advisory Opinion dated January 2, 1996, Committee on Open Government, New York State Department of State (identifying details pertaining to a complainant may be deleted pursuant to POL § 87 (2)(b)).

In addition, POL § 87(2)(e) allows agencies to withhold documents when their disclosure would interfere with law enforcement. This agency routinely denies access to the identities of complainants as to do otherwise would likely result in loss of vital information regarding environmental violations.

In response to your inquiry as to why the Region took four months to respond to your initial FOIL request, I am informed that your request came during the period that the Region was newly responsible for FOIL requests related to law enforcement. Previously, Central Office handled these requests. In your appeal, you had also questioned why Department staff identified the ECOs as complainants. I have been advised by Department staff that because the ECOs witnessed the area of the burning, staff considered them to be complainants as well. However, as you acknowledged in your appeal letter, the ECOs' names are known to you and are not the name(s) that you are seeking.

Based upon my review of the applicable FOIL provisions, I am denying your appeal. 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 Practice Law and Rules, and POL § 89(4)(b). In any further contact with this office regarding this matter, please reference FOIL Appeal No. 05-22-6A.

Very truly yours,

Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, Records Access Officer
John Moesel, DEC Region 6

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